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WOTUS Part 7: Far from Over
February 23, 2016

By Peter D. Mohr

It has been some time since we have had reason to comment on the status of the numerous state challenges to the Environmental Protection Agency’s and the U.S. Army Corps of Engineers’ controversial rule that newly defined the terms “Waters of the United States” (“Rule”). See links below to prior blog postings.  As you will recall from our prior postings on the issue, the Rule determines the reach of EPA’s and the Corps’ regulatory jurisdiction under the federal Clean Water Act (“CWA”).  This dispute has enjoyed months of relative silence, but this week all of that changed–and in a hurry. 

The last we heard of the Sixth Circuit on the challenges brought before it was on October 9, 2015, when the court entered its ruling granting the 18 petitioner states’ motion for a stay preventing further implementation of the Rule.  In its ruling, however, the court was clear that it still had yet to determine whether it possessed jurisdiction to hear the merits of the petitioners’ claims.  At that time, we also cautioned in this blog that such a stay was only to be construed as temporary pending the Sixth Circuit’s determination Tof whether it possessed original jurisdiction to hear such a challenge or whether such jurisdiction originally lied with the federal district courts.

Yesterday, February 22nd, a three judge panel for the Sixth Circuit issued an opinion confirming it has jurisdiction to hear Petitioners’ challenges to the Rule.  The Sixth Circuit’s panel ruling is significant for a number of reasons, primary among them being that (a) it believes it possesses original jurisdiction to hear such challenges, and (b) given that it found sufficient cause to initially issue the stay, there is good reason to believe the court may present a favorable forum for those seeking to challenge the Rule’s definition as too expansive under the CWA. 

Regarding its ability to hear the Petitioners’ challenges to the Rule, the Sixth Circuit rejected eight motions to dismiss alleging that proper jurisdiction to review challenges to the Rule exclusively lies in federal district courts.  The movants–consisting of both Petitioners and intervenors–argued that the challenges to the Rule do not reside within the judicial review provisions under 33 USC § 1369(b)(1) of the Clean Water Act.  Two of the three judges on the Sixth Circuit panel disagreed, although having reached such conclusions for materially different reasons.  

Judge David W. McKeague, who provided the lead opinion of the panel, concluded that the Sixth Circuit has jurisdiction to hear the challenges under either 33 U.S.C. § 1369(b)(1)(E) or (F).  In pertinent part, these two provisions allow a party to seek judicial review before a federal Circuit Court of Appeals of an EPA Administrator’s action in “approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title,” or “issuing or denying any permit” under the CWA.  33 U.S.C. § 1369(b)(1)(E) and (F).  Judge McKeague concluded that historically these provisions have been construed broadly to support the greater policy objectives of the statute thereby warranting dismissal of a more narrow construction that would have the provisions applied as written (and which would have excluded further consideration of the Rule) and confirming original jurisdiction in the Sixth Circuit.

As the concurring panel member, Judge Richard Allen Griffin also found the Sixth Circuit possessed jurisdiction, although reluctantly.  In direct contrast to the lead opinion, Judge Griffin concluded that § 1369(b)(1)(E) did not provide jurisdiction but felt compelled to find jurisdiction existed under § 1369(b)(1)(F) on account of the Sixth Circuit’s prior decision in National Cotton Council of America v. U.S. EPA.  In such case, the reviewing panel had held that § 1369(b)(1)(F) provided the Sixth Circuit original jurisdiction to review any regulation “governing” permits.    Judge Griffin made it clear such an interpretation of § 1369(b)(1)(F) in National Cotton Council was overly broad and, therefore, incorrect.  However, lacking the authority to overrule it since such a ruling could only be accomplished by either an en banc review of the entire Court or a change in the law, he held that initial judicial review of the Rule properly lies before the Sixth Circuit.

The third member of the panel, Senior Judge Damon J. Keith dissented, arguing a position akin to Judge Griffin’s, but for the fact that he refused to read the 6th Circuit’s decision in  National Cotton Council  decision so broadly as to provide jurisdiction to hear Petitioners’ challenges to the Rule.  Whether Petitioners will seek a re-hearing of the panel’s decision en banc will remain to be seen.  Regardless, given that that the panel’s decision substantively lends toward the denial of jurisdiction since Judge Griffin only ruled how he did because he felt compelled to follow National Cotton Council, I think it safe to assume the question of jurisdiction is not only far from over, but I’ll take my bets that it will be overturned should it come back before the full court. 

Part 1   Part 2   Part 3   Part 4   Part 5   Part 6
 



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