Sixth Circuit Declines to Revisit Its Decision to Keep Jurisdiction Over WOTUS Litigation
On Thursday, April 21, the full Sixth Circuit denied six petitions for en banc rehearing of a three-judge panel’s February 2016 decision that the court of appeals has jurisdiction to hear challenges to the controversial Waters of the United States (“WOTUS”) rule. The decision is a disappointment for states and industry groups, who seek to litigate the rule in district courts across the country. It is also somewhat surprising given the original panel decision’s fractured nature and (in the eyes of opponents) weak foundation. As this blog explained previously, Judge Griffin, who provided the critical second vote to keep jurisdiction, only did so because he felt bound by Sixth Circuit precedent that he believes was wrongly decided. In other words, only one of the three judges on the panel believed that the court of appeals properly had jurisdiction to hear challenges to the WOTUS rule. In their petitions for review, industry groups and states highlighted the decision’s “splintered” nature, noted a division of authority with the Eleventh Circuit, and argued that it creates uncertainty for other courts around the country which are faced with the same jurisdictional question.
Notwithstanding these arguments, the original panel reviewed the decision and concluded that the issues raised in the petitions for review were fully considered in its previous decision. Judge Keith, however, would have granted rehearing “for the reasons stated in his dissent” from the panel decision. Further, the petitions for rehearing were circulated to the entire court and no judge requested a vote on the suggestion for rehearing en banc.
Challengers to the WOTUS rule will now likely have to defend against renewed attempts to have the various district court cases dismissed for lack of jurisdiction. DOJ will likely argue—and, indeed, has already argued in some cases—that the Sixth Circuit’s decision to deny rehearing settles the jurisdictional issue and is binding on the district courts and other circuit courts nationwide. DOJ will soon have an opportunity to pursue this position in an Eleventh Circuit case considering the same jurisdictional issue. There, Georgia and ten other states are appealing a district court’s denial of their request for a preliminary injunction in their WOTUS challenge, where the court ruled that review is proper only in the court of appeals. Following the Sixth Circuit’s denial of rehearing on Thursday, the Eleventh Circuit ordered the parties to submit supplemental briefing on several issues including whether the Sixth Circuit’s jurisdictional ruling is binding. In addition, the jurisdictional question is now before the Tenth Circuit, which will consider an Oklahoma district court’s dismissal of a WOTUS challenge brought by industry groups; that district court relied on the Sixth Circuit panel’s February 2016 opinion in deciding it lacked jurisdiction.
States and industry groups’ remaining avenue for relief from the Sixth Circuit’s judgment is asking the U.S. Supreme Court to take the case. It is likely that however these district and circuit court battles play out, the losing parties will try to bring the matter to the highest court. However, it remains to be seen whether the Supreme Court will agree to review the Sixth Circuit’s jurisdiction decision on an interlocutory basis—i.e., before the Sixth Circuit and any other lower courts have ruled on the merits.