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Environmental Blog

  • 01
  • March
  • 2016


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WOTUS Challengers Begin Responding to the Sixth Circuit’s Order Retaining Jurisdiction

Yesterday, we wrote about last week’s Sixth Circuit decision to keep jurisdiction over challenges to the federal government’s rule redefining “Waters of the United States” (“WOTUS”) under the Clean Water Act. We suggested that given the fractured nature of the Sixth Circuit panel’s opinion, the case was ripe for parties to request en banc rehearing before the full Sixth Circuit. Although parties have 45 days to file a petition requesting en banc rehearing, the first petition was not long in coming, filed yesterday by a group of nineteen trade groups and associations. As expected, the petitioners highlight the Sixth Circuit’s “splintered 1-1-1 jurisdictional decision.” They further argue that two judges on the panel agree that the controlling case in the Sixth Circuit, National Cotton Council v. EPA, was wrongly decided, and they bolster their case with a discussion of the Eleventh Circuit’s disagreement with National Cotton. The presence of a circuit split, coupled with judges questioning the validity of the Sixth Circuit’s own precedent, work in petitioners’ favor. It also seems likely that additional motions for en banc rehearing will be filed by other parties.

Responses to the jurisdictional decision are not limited to petitions in the Sixth Circuit. We noted yesterday (as did the petitioners in the petition for en banc rehearing) that some district courts may look at the Sixth Circuit’s fractured opinion and determine they are not bound by the decision. Parties in various district courts have already begun to make filings acknowledging this possibility. In the Northern District of Georgia, for example, challengers requested a continued stay of proceedings “while the Sixth and Eleventh Circuits resolve the jurisdictional question with finality.” In the same filing, the parties asserted that the Sixth Circuit’s ruling on jurisdiction is not binding on the district court. Similarly, in a recent filing in the Southern District of Texas, challengers claimed that the Sixth Circuit’s ruling on jurisdiction is not dispositive. The federal defendants are likely to move to dismiss the WOTUS challenges in district courts across the country, but it remains to be seen how the district courts will respond given the fractured Sixth Circuit opinion and the posture of the case as it moves closer toward a potential en banc rehearing. 

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Brandon M. Tuck

Brandon M. Tuck Counsel