EPA Administrator Gina McCarthy, on behalf of the EPA, is a defendant in the ongoing WOTUS litigation.
After a year of jurisdictional wrangling involving challenges to the EPA’s 2015 changes to its Waters of the United States (WOTUS) rules, the 11th Circuit Court of Appeals in Atlanta on Tuesday formally deferred to the 6th Circuit in Cincinnati. The 11th Circuit’s ruling likely ends legal uncertainties over jurisdiction and avoids the possibility of conflicting federal decisions over the rule’s legality. (For a discussion of this uncertainty, click here.)
On June 29, 2015, the EPA and Army Corps of Engineers issued revised rules governing the definition of “Waters of the United States.” The new rules significantly expanded Federal jurisdiction and unleashed a torrent of litigation in the federal courts. So far, 31 states have filed or joined litigation to overturn the rules, as have multiple business groups and local governments.
These challenges led to a major fight over whether federal district courts or courts of appeals have jurisdiction to hear the rule under section 509 of the Clean Water Act. Due to the uncertainty of jurisdiction, litigation challengers filed suits in federal districts and petitions for review in appellate courts.
The appellate petitions were consolidated in the 6th Circuit, which issued a nationwide stay of the rule in November 2015. That Court then issued a detailed schedule with briefing completed by February 2017 and oral argument scheduled “as soon as practicable” thereafter.
Simultaneously, however the 10th and 11th Circuits were considering appeals of rulings from Federal courts in Georgia and Oklahoma holding that courts of appeals should have exclusive jurisdiction in this case. The 11th Circuit, which covers Florida, Georgia and Alabama, became “ground zero” for this fight at oral argument in July due to the prospect that the court might issue a decision that conflicted with the 6th Circuit.
The 11th Circuit’s August 16 ruling put this prospect to rest, explicitly deferring to the 6th Circuit.
The Decision and its implications
I found the 11th Circuit’s opinion exceptionally well-reasoned. The three-judge panel cited its “broad discretion” to “avoid” duplication in litigation. The judges stated, “[I]f there were an exhibition hall for prudential restraint in the exercise of judicial authority, this case could be an exemplar in the duplicative wing.”
The Court noted that the “the Sixth Circuit is the obvious court to proceed… because it is significantly farther along the decisional path than we are.” The court further noted that the 6th Circuit has “set a briefing schedule on the merits and is the process of winnowing down the massive administrative record to its most relevant parts.”
Given the breadth of this ruling, my hunch is that the 10th Circuit will also follow the 11th Circuit’s lead and defer to the 6th Circuit. As a result, legal challenges to the EPA’s new WOTUS rules will finally move the merits stage. The 6th Circuit is already considering claims that the administrative record should include legal and technical memos from the Army Corps of Engineers written during the rule’s formulation that were highly critical of the EPA’s direction. The Corps documents dispute EPA’s data, analysis and findings and this could be critical in the court’s review.
The upcoming briefing will cover a range of issues including:
Does the Rule violate the federalism principles under the 10th Amendment?
Does the Rule exceed the Constitution’s Commerce Clause?
Does the Rule misapply Justice Kennedy’s “significant nexus” ruling in the Supreme Court’s 2006 Rapanos decision and fail to give adequate notice of changes in the final rule setting jurisdictional limits?
Given the breadth and scope of the issues, a ruling is not expected until mid-2017 at the earliest.
Larry Liebesman, Esq. Senior Advisor
A nationally recognized environmental lawyer with more than 35 years of experience, including 11 years at the U.S. Justice Department, Larry specializes in federal Clean Water and Endangered Species Acts and the National Environmental Policy Act (NEPA).