This educational guide is based on the linked primary sources. It is not a Court publication, is not affiliated with the Court, and is not legal advice.
In brief
Overview
According to National Association of Manufacturers, the Clean Water Act limits judicial review by courts of appeals to seven specific EPA actions defined in Section 1369(b)(1).
According to National Association of Manufacturers, congress intentionally listed only those actions, unlike the Clean Air Act which provides broader appellate review.
Background and question before the Court
Justice Ginsburg asked what would happen if the preliminary question of whether water is “waters of the United States” and a permit‑grant/denial question were presented together.
What each side argues
National Association of Manufacturers
According to National Association of Manufacturers, nAM argues that the Clean Water Act provides a narrow jurisdictional rule for appellate review, based on Section 1369(b)(1).
According to National Association of Manufacturers, nAM warns that if challenges are brought in district courts, each must review the entire administrative record, potentially involving dozens of courts, and the record would be reviewed again on appeal.
Department of Defense
Source-limited. The record does not yet support a complete account.
What happened at oral argument
Justice Ginsburg asked about the effect of combining a “waters of the United States” question with a permit decision question.
Justice Sotomayor asked whether res judicata or collateral estoppel applies to the government.
Justice Alito asked whether EPA has the power to issue the type of rule Justice Kagan described.
According to Justice Kagan, justice Kagan questioned whether the interpretation depends on the meaning of the word “under” in the statutory language.
Justice Sotomayor asked whether the case might become moot or take longer than the term.
Justice Alito asked about the textual argument relating to clause (F).
- [1] 4287fc307b937622fedd-r1-3e86501da6dfa2c9.pdf, p. 5
- [2] 4287fc307b937622fedd-r1-3e86501da6dfa2c9.pdf, p. 9
- [3] 4287fc307b937622fedd-r1-3e86501da6dfa2c9.pdf, p. 24
- [4] 4287fc307b937622fedd-r1-3e86501da6dfa2c9.pdf, p. 26
- [5] 4287fc307b937622fedd-r1-3e86501da6dfa2c9.pdf, p. 52
- [6] 4287fc307b937622fedd-r1-3e86501da6dfa2c9.pdf, p. 58
What the Court decided
Why it matters
According to National Association of Manufacturers, determining the scope of appellate review under the Clean Water Act affects how many courts may be involved in reviewing EPA regulations.
Clarifying whether EPA’s authority derives from Section 1311 or the broader Section 1361 influences the legality of the WOTUS rule.
Terms to know
No glossary terms are available for this guide.
Primary sources
Read the source materials on the official site or open the immutable repository copy used for this guide.
- 4287fc307b937622fedd-r1-3e86501da6dfa2c9.pdforal argument transcript
Guide generated September 26, 2026. Automated validation accepted this version.