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Environmental Blog

  • 29
  • February
  • 2016


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Sixth Circuit Keeps Jurisdiction Over WOTUS Challenge, For Now

After much anticipation, a three-judge panel of the Sixth Circuit decided on February 22, 2016 that it has jurisdiction to hear challenges to the hotly contested Clean Water Rule. The rule, also known as the Waters of the United States rule (“WOTUS”), is an attempt by the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers to redefine the scope of waters protected under the Clean Water Act. At issue in the recent decision is the threshold question of whether federal appellate courts—such as the Sixth Circuit where the WOTUS challenges from numerous circuit courts were consolidated—have jurisdiction to decide the case, or whether the challenges should be heard by the more than dozen federal district courts across the country where opponents have also filed challenges.

Although the Sixth Circuit panel decided it was the right court for the challenges, the longevity and persuasiveness of that decision remain to be seen. Somewhat unusually, all three members of the panel appeared to agree that under the plain text of the jurisdictional statute, jurisdiction would be proper only in the district courts. In addition, the Judge who provided the critical second vote for appellate jurisdiction stated explicitly that he was concurring in the judgment only because he felt bound by a prior Sixth Circuit case called National Cotton Council of America v. EPA, which he believes was wrongly decided, and that he would have otherwise found jurisdiction in the district courts. The dissenting judge disagreed that National Cotton controlled. Not only does this fractured opinion make the case ripe for parties to request and obtain en banc rehearing in the Sixth Circuit, but it also provides a basis for district courts in other circuits (which will not be bound by the key Sixth Circuit precedent that carried the day for this panel) to retain jurisdiction and move forward.

The central issue is whether a final rule on the scope of federal jurisdiction under the Clean Water Act is one of the types of EPA actions the Clean Water Act’s judicial review provisions—found in section 509(b)(1)—assign to the circuit courts for direct review. Challengers filed motions asking the Sixth Circuit to dismiss their cases (thereby allowing the challenges to be considered only in various federal district courts) because WOTUS does not fall into any of the categories of actions listed in section 509(b)(1). All parties agreed that WOTUS only potentially fits within two types of actions: subsection (E), an action “in issuing or promulgating any effluent limitation or other limitation,” or subsection (F), an action “in issuing or denying any permit.”

Only Judge McKeague from the Sixth Circuit panel found that jurisdiction would be proper under both subsections, despite challengers’ assertion that WOTUS is a “definitional rule” that is neither an “other limitation” nor an action “in issuing or denying any permit.” In so concluding, Judge McKeague cited to precedent from the Supreme Court and various circuit courts that opened the door for a loose construction of the judicial review provisions. (Judge Griffin, who concurred only in the judgment, rejected jurisdiction under the “other limitation” theory in subsection (E), but found jurisdiction proper under the “any permit” prong in subsection (F).) 

Under the more expansive reading, the provisions authorize direct circuit court review of regulations that will indirectly result in limitations on point sources (in Judge McKeague’s view) as well as regulations that will impact the issuance or denial of permits (as both Judge McKeague and Judge Griffin agreed). Such a reading, in Judge McKeague’s view, is in line with the Congressional purposes underlying the judicial review provisions for two reasons. First, it ensures judicial economy. By funneling certain types of cases directly to circuit courts, section 509(b)(1) pares down the judicial review process from two levels to one—a move that makes sense when the district court’s relative superiority in fact-finding is unnecessary for review. This is often the case for agency regulations like WOTUS, which are reviewed on the basis of an administrative record.

Second, in Judge McKeague’s view, a broader reading is in line with the Act’s jurisdictional scheme, “which in general leaves review of standards of nationwide applicability to the courts of appeal” and “thus further[s] the aim of Congress to achieve nationally uniform standards.” Judge McKeague concluded that a plain language construction would lead to a “perverse” outcome: the circuit courts would have authority to directly review effluent limitations and the issuance of permits, but not the regulations that govern those individual actions. Judge Griffin’s concurring opinion countered, however, that this interpretation conflicts with Congress’s plain language and is merely a policy consideration found in dicta that should not bind the court.

As even this short discussion illustrates, the Sixth Circuit’s opinion was quite fractured. Judge McKeague’s opinion would have found jurisdiction under both subsections (E) and (F). Judge Griffin’s concurrence rejected the lead opinion’s analysis of both subsections, but concurred in the judgment only because he felt bound by what he viewed as the wrongly decided National Cotton case, holding that the courts of appeals have direct review over anything relating to or affecting permit requirements. Judge Keith’s dissenting opinion similarly rejected the lead opinion’s analysis under subsections (E) and (F), and further rejected the concurrence’s belief that National Cotton controlled; in Judge Keith’s view, National Cotton only provided for direct appellate review of rules regulating permit procedures, not any rule merely relating to those procedures. All told, challengers have ample ammunition (in the reluctant concurrence and reasoned dissent) to seek en banc rehearing in the Sixth Circuit.

Beyond the broader ramifications for administrative law, the practical significance of this decision is twofold. First, at least on its face, the decision did nothing to disturb the nationwide stay put in place by the Sixth Circuit in October 2015.

Second, the jurisdictional battle is far from over, and the focus will now shift to other courts of appeals and the numerous district courts where challengers have also filed suit. Many of the district court cases have been stayed pending the Sixth Circuit’s decision or have progressed quite slowly, and each side is certain to draw contrasting interpretations of what the Sixth Circuit’s opinion means. Moreover, the jurisdictional question is already pending in the Eleventh Circuit, and ten states challenging WOTUS requested that the Eleventh Circuit renew its review of the jurisdictional question on appeal. The Eleventh Circuit had previously issued an order on February 18, 2016 holding that case in abeyance pending the Sixth Circuit’s decision. In asking the Eleventh Circuit to take up the question afresh, the states emphasized the fractured nature of the Sixth Circuit decision and the fact that National Cotton is not only non-binding in the Eleventh Circuit, but has been expressly rejected by the Eleventh Circuit. If the Eleventh Circuit were to disagree with the Sixth, the square split of authority would provide a compelling basis for Supreme Court review.

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Brandon M. Tuck

Brandon M. Tuck Counsel