The Supreme Court is asking the Department of Justice (DOJ) to formally respond to a recycling company's petition urging the justices to resolve what it says is an appellate court circuit split over whether agencies' Clean Water Act (CWA) "jurisdiction" determinations are judicially reviewable - the administration's first chance to outline its case on whether the divided courts warrant the justices taking up the question. In May 18 orders the justices set a 30-day deadline for DOJ to file a response to the petition in Kent Recycling Services v. U.S. Army Corps of Engineers. In a July 30 unanimous ruling, the U.S. Court of Appeals for the 5th Circuit held that that CWA jurisdictional determinations (JDs) issued by EPA or the Army Corps of Engineers cannot be challenged in court before agencies launch enforcement or permitting actions based on the findings. Kent says the 5th Circuit ruling is at odds with a more recent 8th Circuit decision, and says the high court needs to resolve the circuit split over whether JDs are judicially reviewable. "The respondent is requested to file a response to the petition for rehearing within 30 days," the high court's order says.
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