11th Circuit: CWR decision belongs to 6th Circuit

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CWR - WOTUS Decision Left to Sixth Circuit

11th Circuit: CWR decision belongs to 6th Circuit

The Eleventh Circuit Court of Appeals recently dealt a significant blow to opponents of the Obama administration’s controversial Clean Water Rule (CWR), which redefines the “waters of the United States” (WOTUS).  The three-judge panel sitting in Atlanta ordered that an appeal taken on behalf of a number of states, including Utah, would be put on hold pending a decision from the Sixth Circuit Court of Appeals in a case that made an identical challenge to the CWR.

Sixth Circuit Issues National Stay of CWR in Split Decision

The Sixth Circuit ordered a nationwide stay of the CWR last year in In re EPA, while it determined whether it had jurisdiction to hear the case.  In February, the Sixth Circuit decided that it, and not a lower federal district court, had jurisdiction over the case.  in a splintered decision, two of the three judges deciding the jurisdiction question concluded that the Sixth Circuit had jurisdiction to hear challenges to the CWR under either 33 U.S.C § 1369(b)(1)(E) or (F).  While acknowledging that the WOTUS rule does not fit neatly into the categories for which § 1369 provides for circuit court jurisdiction, Judge David McKeague concluded that these provisions have been given expansive interpretations by the courts, sufficient to provide for jurisdiction.

A Strange Concurrence

Judge Richard Allen Griffin concurred in the result, even though he concluded that neither provision of § 1369 supplied the Sixth Circuit with jurisdiction to hear challenges to the CWR.  Nonetheless, Judge Griffin set forth that the Sixth Circuit was obligated to conclude that the court had jurisdiction under § 1369(b)(1)(F) pursuant to the ruling in National Council of America v. U.S. EPA.  In National Council of America, the Sixth Circuit held that it had jurisdiction over any regulation “governing” permits.  According to Griffin, while there would be no jurisdiction under a “plain text reading” of the statute, he concluded he was “constrained by our court’s precedent holding that ‘issuing or denying any permit’ means more than just that.”

Senior Judge Damon J. Keith dissented from Judge McKeague’s majority opinion, claiming that the relevant portions of the CWA do not provide for jurisdiction to challenge the WOTUS rule in a circuit court, and that the National Cotton Council decision should not be read so broadly as to provide for jurisdiction here.

Georgia Federal Court Determines Jurisdiction Rests With Court of Appeals

While the Sixth Circuit has decided it can hear a challenge to the CWR, other opponents of the CWR filed a similar case against the CWR in federal court in the Southern District of Georgia on June 30, 2015.  In that case, the plaintiffs made much the same contentions as those in the Sixth Circuit case—namely that the CWR was invalid and that the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE) should be enjoined from enforcing the rule.  On August 27, 2015, the Georgia federal court denied the plaintiffs’ motion to enjoin enforcement of the CWR, concluding that 33 U.S.C. § 1369(b)(1) gives courts of appeals exclusive original jurisdiction over challenges to the rule.  Plaintiffs appealed the court’s ruling to the Eleventh Circuit in Atlanta.

Eleventh Circuit Asks Parties to File Supplemental Briefing in Light of Sixth Circuit’s Decision

After the Sixth Circuit determined that it had jurisdiction over challenges to the CWA, the Eleventh Circuit asked the parties to brief:

1) whether this appeal is moot in light of the Sixth Circuit’s nationwide stay of enforcement of the Clean Water Rule in In re EPA I;

2) whether we should stay any further proceedings in this case while the In re EPA I stay order remains in effect;

3) whether we should hold this appeal in abeyance pending the Sixth Circuit’s decision concerning the validity of the rule;

4) whether we are bound by the Sixth Circuit’s determination in In re EPA II that courts of appeals have exclusive original jurisdiction over challenges to the rule;

5) whether the determination of jurisdiction in In re EPA II has preclusive effect on that issue in this appeal; and

6) if not, what persuasive weight we should give to In re EPA II.

Eleventh Circuit Leaves CWR Determination Up to Sixth Circuit

Following oral argument on the aforementioned issues, the Eleventh Circuit issued an opinion declining to hear the merits of the appellant’s case, instead deferring to any ruling on the merits from the Sixth Circuit.  According to the Eleventh Circuit, it would be a “colossal waste of judicial resources” for it to get involved in the ongoing legal challenge to the rule.  Citing the general rule against “duplicative litigation,” the Eleventh Circuit said:

If there were an exhibition hall for prudential restraint on the exercise of judicial authority, this case could be an exemplar in the duplicative litigation wing. The case before us and the case before the Sixth Circuit involve the same parties on each side, the same jurisdictional and merits issues, and the same requested relief … It would be a colossal waste of judicial resources for both this Court and the Sixth Circuit to undertake to decide the same issues about the same rule presented by the same parties.

All Eyes on the Sixth Circuit

Given the Eleventh Circuit’s decision to defer to the Sixth Circuit, all eyes are on the Sixth Circuit and its impending decision on the merits of the challenge to the CWR.  Petitioners’ initial substantive briefs on the merits are due September 30, 2016, respondent agencies’ brief is due November 30, 2016, and replies are due January 20, 2017 (Inauguration Day).   The court has ordered the parties to submit a joint appendix of documents from the administrative record for the court’s consideration by February 3, 2017.  The Sixth Circuit will then schedule oral argument.  The extended schedule reflects the complexity of the litigation and while the current Administration will file the respondents’ brief, the next Administration will argue the cause.

U.S. Chamber and Others Ask Tenth Circuit to Revive Challenge to CWR

In addition to the Sixth Circuit and Eleventh Circuit cases over the CWR, The U.S. Chamber, along with the National Federation of Independent Business, Portland Cement Association, State Chamber of Oklahoma, and Tulsa Regional Chamber, filed their own appeal at the Tenth Circuit Court of Appeals, asking the Tenth Circuit to reverse the U.S. District Court for the Northern District of Oklahoma’s decision to dismiss the case.

In their opening brief, the appellants argued to the Tenth Circuit that it has an independent obligation to determine its jurisdiction.  Additionally, to the extent the district court deferred to the Sixth Circuit, the appellants argued the district court erred because the CWA’s text and the established default rule under the Administrative Procedure Act (APA) clearly indicate that the district court has original jurisdiction over the WOTUS rule, as none of the CWA’s limited exceptions providing for original jurisdiction in the courts of appeals apply in this case.  Finally, appellants argued that the agencies’ policy-based reading of the CWA finds no support in Supreme Court or Tenth Circuit precedent, much less in the plain text of the CWA.  The Tenth Circuit has not yet ruled on the question of jurisdiction before it.

* Photo Cred.: capitalpress.com

Copyright 2016

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U.S. Sixth Circuit Court of Appeals

Clean Water Rule Challenges to be heard by Sixth Circuit

Recently we reported on the stay issued by the Sixth Circuit Court of Appeals to the Clean Water Rule.  The Clean Water Rule was challenged by a number of plaintiffs in various federal district courts and circuit courts around the country.  The plaintiffs filed petitions in both the district and circuit courts based upon what they allege is uncertainty about whether the adoption of the Clean Water Rule is within those actions that must be challenged in a U.S. Circuit Court of Appeals.  After issuing a stay of the Clean Water Rule, the Sixth Circuit Court of Appeals ruled in late February that it would hear challenges to the Rule.

The Clean Water Rule and its Challengers

In June 2015, the Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“USACE”) proposed the Clean Water Rule, which redefined what bodies of water qualify as “waters of the United States” under the Clean Water Act (“CWA”).  The Clean Water Rule’s detractors say the Rule improperly gives the EPA and USACE broad new authority under the CWA, and that federal district courts should first hear the case, not the Sixth Circuit.

A central question before the Sixth Circuit has been whether the federal government was correct in asserting that the Clean Water Rule is an “other limitation,” meaning a limitation on the way the EPA regulates certain pollutant discharges, under section 509(b)(1)(E) of the CWA.

Sixth Circuit Holds it has Jurisdiction Over Challenges to Clean Water Rule

In a close 2-1 panel decision, the Sixth Circuit stated that it had jurisdiction to hear the case.  This is true despite the fact that Sixth Circuit Judges Richard Griffin and Damon J. Keith actually found the Clean Water Rule does not fit into that provision’s parameters, saying they would not review the case on that basis.  Even still, Judge Griffin agreed with Judge David W. McKeague that Section 509(b)(1)(F) of the act, which addresses the issuance or denial of permits, grants the Sixth Circuit jurisdiction.

The groups opposing the Sixth Circuit’s review said that section (F) did not justify jurisdiction in the Sixth Circuit because the Clean Water Rule is not an “action” of the EPA administrator “in issuing a permit.”  Judge McKeague disagreed, siding instead with the EPA’s argument that the effect of the Clean Water Rule is to impact permitting requirements, thereby affecting the granting and denying of permits, which the judge said is enough to bring the Clean Water Rule under subsection (F).

Sixth Circuit Relied on National Cotton Decision in Concluding it has Jurisdiction

Judge McKeague and Judge Griffin relied on the Sixth Circuit’s 2009 ruling in National Cotton Council v. EPA in coming to their conclusion.  In National Cotton, numerous groups challenged a rule that exempted from the CWA’s permitting requirements pesticides applied in accordance with federal law.  The environmental groups that challenged the rule argued that jurisdiction lied in federal court, where the groups had filed an action in the Northern District of California.  The Sixth Circuit disagreed, denying the groups’ motion to dismiss.

In denying the motion, the Sixth Circuit concluded that the rule at issue satisfied subsection 509(b)(1)(F).  In relying on two decisions from the Ninth Circuit, the Sixth Circuit found that a rule falls within the purview of subsection (F) if it regulates the underlying permitting procedures, even if it does not amount to the actual denial of the permit.

In his opinion Judge McKeague said, “The National Cotton court noted that this more expansive reading of subsection (F) encompassed even regulations that exempted certain discharges from permitting requirements.”  Judge Griffin said he disagreed with the National Cotton decision, but was nonetheless bound by it.  Judge Keith disagreed that the National Cotton case gave the Sixth Circuit jurisdiction to hear challenges to the Clean Water Rule.

Sixth Circuit’s Jurisdictional Ruling Comes on Heels of Previous Stay of the Clean Water Rule

As noted the Sixth Circuit’s decision regarding its jurisdiction to hear challenges to the Clean Water Rule was preceded by a stay of the Rule.  There, the Sixth Circuit said the petitioners who opposed the Rule had demonstrated “a substantial possibility of success” on the merits of their claims.  The stay order says the rule is stayed “pending further order of the court,” so it appears the stay will remain in effect even after the court’s jurisdictional ruling, which didn’t make any statement that it would be lifted.

The Sixth Circuit’s jurisdictional decision keeps the EPA from having to litigate approximately 20 different cases in federal district court, no doubt a big relief for the EPA.  This is true because the U.S. Panel on Multidistrict Litigation denied the EPA’s request to have the cases centralized in one court on the grounds that the disputes are based on administrative record and require very little discovery.

Similar Case in the Eleventh Circuit Waited to Hear What Sixth Circuit had to Say

While the Sixth Circuit has determined that it has jurisdiction over challenges to the Clean Water Rule, there is another similar case pending in the Eleventh Circuit in which Florida and 10 other states, including Utah, are seeking to overturn a Georgia district judge’s finding that an appeals court is the proper venue for their challenge to the Clean Water Rule.  In Georgia v. McCarthy, the states argued that federal district courts are the proper place to challenge the Clean Water Rule.  The Eleventh Circuit postponed oral arguments in the case pending a ruling from the Sixth Circuit.

Since the Sixth Circuit has ruled that they had jurisdiction, it is likely the Eleventh Circuit will rule it has jurisdiction as well.  However, this does not mean the end for the battle over the Clean Water Rule.  In fact, it would appear that the fight is just beginning.  Yet, if the Sixth Circuit’s hint in issuing its stay is correct, namely that the petitioners had shown a possibility of success on the merits, then the Clean Water Rule may be in jeopardy.

Contact C/J’s Water Law Team Today

We will continue to follow this case, and will provide any updates as they become available.  If you or someone you know may be impacted by the Clean Water Rule, its stay, any future litigation, or if you have other water law related issues, please contact our water law team for a consultation.

* Photo Cred.: the newcivilrightsmovement.com