The Clean Water Act, which defines the geographic reach of “Waters of the United States”, has spawned multiple lawsuits across the country.
On December 8, the battle over which federal court jurisdiction will hear the challenge to the Corps and EPA’s Waters of the United States (WOTUS) rule came to a head in a spirited hearing before a three judge panel of the Sixth Circuit Court of Appeals in Cincinnati. The outcome is likely to help clarify the jurisdictional uncertainty surrounding the litigation “avalanche” over the rule and determine if the Court’s October 9 decision staying the rule will remain in place.
The Legal Landscape Quagmire
The Corps and EPA’s new Clean Water Act (CWA) rule defining the geographic reach of “Waters of the United States” has spawned multiple lawsuits around the country. 71 plaintiffs including 31 states have challenged the rule in nine district courts around the county. Given the uncertainty over whether the review of the rule must occur in federal courts of appeals or district courts, 18 states also sought review of the rule in eight federal courts of appeals.
A federal panel consolidated all the appellate cases in the Sixth Circuit Court of Appeals in Cincinnati and 8 states intervened in support of the rule. On October 9, the Sixth Circuit issued a stay of the nationwide WOTUS rule holding that the petitioner states had “demonstrated a substantial probability of success ” but did not address the jurisdiction issue.
To further confuse matters, on October 13, another federal panel declined to consolidate the pending district court cases in D.C. federal court, finding that the prospect of multiple and differing rulings by multiple federal courts did not justify consolidation.
Thus, North Dakota Federal Judge Erikson’s August 27 preliminary injunction ruling remains in place but only as to the 13 plaintiff states in that case. In fact, his magistrate recently issued an expedited briefing order suggesting that case may be on a fast track for ruling in 2016.
The jurisdictional question turns on the interpretation of technical and somewhat arcane terms found in the Section 509 of the CWA governing judicial review of EPA actions. Section 509 of the CWA provides that Federal courts of appeals have exclusive jurisdiction to review seven very specific EPA actions. The two most relevant actions in this case provide for exclusive appellate review of the EPA Administrator’s approval or promulgation of “effluent limitation” or “other limitations ” and the Administrator’s action “issuing or denying any permit under section 402 of the Act.”
In 2009 the Sixth Circuit in the National Cotton Council v. EPA had ruled that it had jurisdiction to review an EPA rule on whether CWA permits were required for certain pesticide applications because the law allowed the court to review a rule “that regulates the underlying permit procedures.”
D&A Senior Advisor Larry Liebesman
In 1977, the Ninth Circuit in Virginia Electric Power v Costle had also addressed the “other limitation” provision, holding that it had exclusive jurisdiction to review an EPA rule government utility water intake structures because it was a “restriction on the untrammeled discretion of the industry.”
However, North Dakota Judge Erickson in granting a preliminary injunction of the rule on August 27 , soundly rejected both bases for jurisdiction holding that the WOTUS rule imposes no “other limitation” upon the Plaintiff states and that the rule “has at best an attenuated connection to any permitting process.”
Heading into the December 8 argument, it was unclear how the court would look at the WOTUS rule which essentially defines the jurisdictional term of the Clean Water Act and was not an effluent limitation of the kind normally reviewed in the court of appeals nor did it appear to be an EPA permitting rule.
The case was heard before two George W. Bush appointees, David McKeague and Richard Griffin, and a Jimmy Carter appointee, Damon Keith. Judges McKeague and Griffin questioned the DOJ attorney’s reliance on National Cotton Council and suggested that the “other limitation” provision may be a better basis. Yet, Judge Griffin still suggested that the court might be bound by the National Cotton Council holding.
They also seemed to struggle with the DOJ attorneys’ reliance on Virginia Electric Power and expressed concerns that DOJ’s interpretation may be so broad that it would greatly expand the jurisdiction of the court of appeals in CWA cases, with Judge Griffin even asking, “Is there any limit to our jurisdiction then?”
However, in questioning Ohio’s Solicitor General who was arguing for the states, the panel appeared to have concerns about multiple district courts reviewing a nationwide rule citing to the need for national uniformity. Thus, while the panel made some comments suggesting that it was leaning in favor of jurisdiction, it was by no means clear that the ruling would come out that way.
Given the importance of the jurisdictional issue, the panel will likely rule reasonably quickly.
Should the Sixth Circuit find that the Court of Appeals has exclusive jurisdiction, the stay would remain in place and the court would then set a briefing schedule to hear arguments during 2016. However, the Sixth Circuit only covers the states of Michigan, Ohio, Kentucky and Tennessee so other circuit courts could rule differently on the jurisdiction issue. In fact, the Eleventh Circuit covering the States of Florida, Georgia and Alabama is considering an appeal of several Southern states of a ruling by the district court in Atlanta that review of the rule is only in the federal court of appeals.
Should the Sixth Circuit uphold appellate jurisdiction and the Eleventh Circuit hold that district courts are the proper jurisdictional forum that could result in a split of federal circuits, which could lead to Supreme Court review. In any event, district courts in other circuits that have not yet ruled on jurisdiction could move forward with review of the rule as the North Dakota district court is doing in setting an accelerated briefing schedule.
Dawson and Associates will track litigation developments and provide updates as events progress.
Lawrence R. Liebesman, Esq. Senior Advisor