On February 22, a divided panel of Sixth Circuit U.S. Court of Appeals ruled that the Army Corps of Engineers and EPA’s “Waters of the U.S.” rule (WOTUS) can only be challenged in the federal courts of appeals and not federal district courts.
The decision will only worsen the legal confusion over the issue of jurisdiction to hear the challenge. The ruling also creates new legal uncertainty surrounding the litigation over the rule, which is being challenged in 14 cases in federal district courts around the country. But ironically, the ruling could actually hasten court action on the merits of the WOTUS rule.
The Sixth Circuit’s decision
The jurisdictional question addressed by the Sixth Circuit turned 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 7 specific EPA actions.
The Sixth Circuit focused on the two actions cited by the Government. Section 509 (b)(1)(E) provides for exclusive appellate review of the EPA Administrator’s approval or promulgation of “effluent limitations or other limitations“ under sections 301, 302, 306 and 405 of the Act and Section 509 (b)(1)(F) of EPA actions “issuing or denying any permit under section 402 of the Act.”
The lead opinion by Judge David McKeague upheld the Government’s argument while conceding that the rule “is definitional only” and “does not directly impose any restriction or limitation“ nor was it a permit issuance or denial. Judge McKeague applied a “functional“ rather than a “formalistic’ rationale” to justify court of appeals jurisdiction of the WOTUS rule, an action that was not included in the plain language of section 509’s judicial review limitations.
In doing so, he relied on a number of prior decisions that dealt with appellate review of EPA’s actions that were not directly covered by section 509. For example, in finding that the WOTUS definitional rule was an “other limitation,” he relied on the Supreme Court’s 1977 ruling in E.I Dupont de Nemours Co. v. Train 430 U.S.112 (1977) holding that review of EPA specific regulatory programs covered under section 509 could also include “the basic regulations governing individual EPA actions.”
Judge McKeague then relied decisions of the 8th, 4th and DC Circuits that followed E.I Dupont’s language reflecting “Congress’ manifest intent to encompass review of more agency actions than a literal reading of the provision would suggest.” Yet he acknowledged that the WOTUS rule “is definitional only” and “does not directly impose any restriction or limitation …” but noting that “the Rule undeniably has an indirect effect of altering permit issuers authority to restrict point –source operators’ discharges into covered waters.”
Further, Judge McKeague found that the court was bound by 6th Circuit’s National Cotton Council v. EPA 553 F.3d. 927 ( 6th. Cir. 2009) ruling 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 impacts permitting requirements.” He applied the same reasoning to the WOTUS Rule. Finally, he held that there were no “practical considerations that would justify holding that adjudication of the instant petitions in the various district courts would better serve Congress purpose.”
Judge Richard Allen Griffin disagreed with Judge McKeague’s interpretation, holding that it was “illogical and unreasonable to read the text of either subsection (E) or (F) as creating jurisdiction in the Court of Appeals. “ He held that the CWA rule is not a “limitation“ on the discharge of pollutants into waters of the United States, stating that he “sees no textual indication that Congress intended any restriction on the industry to be directly reviewed by the courts of appeals.,yet, under the lead opinion’s reading, any industry restriction requires review here.”
To buttress his opinion, he noted that the rule “applies across the entire act,” including section 404 permits issued by the Corps noting that “section 404 is not mentioned in subsection (F).” However, while he otherwise would find that the court lacks jurisdiction, he felt bound the by the 6th Circuit’s National Cotton Council ruling and was required to concur in the judgment of the lead opinion.
In dissent, Judge Damon Keith disagreed with both his colleagues. He agreed with Judge Griffin’s reasoning and conclusion that the “plain meaning of the statute” neither subsections (E) nor subsection (F) confers jurisdiction on the appellate courts.”
However, he felt that National Cotton Council was not binding because it did not expand those subsections to cover all rules “relating” to EPA permitting procedures such as the one at issue here— a rule that merely defines the scope of the term “waters of the United States.”
I concur in Judge Keith’s interpretation. Section 509 clearly limits the specific EPA actions that Congress intended for review in the appellate courts and does not include the WOTUS definitional rule that was issued under CWA’s definitional section to cover both EPA and Corps CWA permitting actions. Judge McKeague’s lead opinion reflected his policy view that it would be more efficient for the appellate court to review the rule rather than have a myriad of federal district courts around the country issue possibly conflicting opinions and he interpreted the case law to reach that result.
The 6th Circuit ruling may not be the last word of the Circuit. Given the 3 fragmented opinions, the full 6th Circuit may decide to hear the case “en banc” which could result in a decision that finds no appellate jurisdiction. Even if the opinion stands, the court’s nationwide injunction will remain in place but the ruling would only be binding on federal courts in the Sixth Circuit states of Ohio, Kentucky, Michigan and Tennessee.
However, the ruling had an immediate impact on pending challenges in other federal courts. On February 24, the Oklahoma federal district court dismissed a pending WOTUS challenge by the State of Oklahoma, the U.S. Chamber of Commerce and other business organizations holding that the Sixth Cirucit’s ruling was controlling and it lacked jurisdiction.
To further complicate matters, the 11th Circuit is also considering whether review is only in the court of appeals in an appeal of a ruling from the district court in Atlanta. The 11th Circuit had postponed argument to await the 6th Circuit’s ruling. Should the 11th Circuit reverse the district court, that would create a split in circuits on jurisdiction potentially leading to Supreme Court review on the jurisdiction issue, not on the merits of the rule.
However, the 6th Circuit’s decision could actually hasten a ruling on the merits of the rule. Should the 11th Circuit agree with the 6th Circuit’s ruling on appellate review, court could defer to the 6th Circuit because that Circuit is where all the petitions challenging the rule have been consolidated. Indeed, in granting the stay last October, the 6th Circuit held that “petitioners had demonstrated a substantial probably of success on the merits.”
Meanwhile, there is nothing to prevent North Dakota federal district Judge Erickson from proceeding ahead with review of the rule. Judge Erickson had issued a preliminary injunction in August 2015, holding that rule was unlawfully issued and that jurisdiction resided in the district courts, not in the courts of appeals. That ruling only covered the 13 states that sued in the North Dakota federal district court.
The Government decided not appeal that ruling so there is no pending appeal of the preliminary injunction at the 8th Circuit. Judge Erickson’s magistrate recently issued an order setting a briefing schedule but stayed that order pending a ruling on whether two Corps memos highly critical of the rule should be included in the administrative record.
Thus, it is possible that both the North Dakota federal district court and the 6th Circuit could issue merits decisions on the WOTUS rule.
Meanwhile, in response to the stay, the Corps and EPA issued a memo on November 16, 2015 listing steps the agencies will take to improve the transparency and strengthen coordination between the agencies including developing an easily accessible up to date web site providing comprehensive information about jurisdictional determinations. The agencies will also continue to apply the “prior regulations together with relevant case law, applicable policy and best available science and technical data in determining which waters are protected by the CWA.”
Dawson and Associates will track litigation developments and will provide updates as events progress.
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).
The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.