Sixth Circuit retains jurisdiction over ‘waters of the U.S.’ lawsuits

A three-judge panel of the U.S. Sixth Circuit Court of Appeals somewhat reluctantly decided in a Feb. 22 opinion to reject a number of motions to dismiss appeals related to the U.S. Environmental Protection Agency’s controversial “waters of the U.S.” rule, which expanded EPA authority over smaller water bodies.

The parties involved in these lawsuits over the 2015 rule include entities like coal producer Murray Energy, the U.S. Chamber of Commerce, the Association of American Railroads and the Utility Water Act Group.

Said the Feb. 22 decision: “This multi-circuit case consists of numerous consolidated petitions challenging the validity of the “Clean Water Rule” recently published by the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency (‘the Agencies’). The Clean Water Rule is intended to clarify the scope of ‘the waters of the United States’ subject to protection under the Clean Water Act. The Act provides that certain specified actions of the EPA Administrator are reviewable directly in the U.S. Circuit Courts of Appeals. Because of uncertainty about whether the Agencies’ adoption of the Clean Water Rule is among these specified actions, parties challenging the Rule have filed petitions in both district courts and circuit courts across the country. Many of the petitions have been transferred to the Sixth Circuit for consolidation in this action. Many of the petitioners and other parties now move to dismiss the very petitions they filed invoking this court’s jurisdiction, contending this court lacks jurisdiction to review the Clean Water Rule.

“The movants find support for their position in the language of the Clean Water Act’s judicial review provisions, which purport to define circuit court jurisdiction specifically and narrowly,” the decision added. “Over the last 35 years, however, courts, including the Supreme Court and the Sixth Circuit, have favored a ‘functional’ approach over a ‘formalistic’ one in construing these provisions. These precedents support the Agencies’ position that this court does have jurisdiction. The district courts that have confronted the jurisdictional question in this litigation have arrived at conflicting answers.

“For the reasons that follow I conclude that Congress’s manifest purposes are best fulfilled by our exercise of jurisdiction to review the instant petitions for review of the Clean Water Rule.” The opinion was written by Judge David McKeague.

The Feb. 22 order noted: “Petitioners contend that the definitional changes effect an expansion of respondent Agencies’ regulatory jurisdiction and dramatically alter the existing balance of federal-state collaboration in restoring and maintaining the integrity of the nation’s waters. Petitioners also contend the new bright-line boundaries used to determine which tributaries and waters adjacent to navigable waters have a ‘significant nexus’ to waters protected under the Act are not consistent with the law as defined by the Supreme Court, and were adopted by a process not in conformity with the rulemaking requirements of the Administrative Procedures Act (‘APA’). The Agencies maintain that the requirements of the APA were met and that the Rule is a proper exercise of their authority under the Clean Water Act.”

The rule became effective in August 2015. In October 2015, however, this appeals court issued a nationwide stay of the rule pending further proceedings in this action. It found that petitioners had demonstrated a substantial possibility of success on the merits of their claims and that the balance of harms militated in favor of preserving the status quo pending judicial review.

The Feb. 22 decision was not unanimous. Judge Damon Keith wrote in a dissent that the court’s holding in a precedential case is not necessarily a good one to apply here. Wrote the judge: “If this court construes that holding to be so broad as to cover the facts of this case, that construction brings subsection (F) to its breaking point: a foreseeable consequence of the concurrence’s reasoning is that this court would exercise original subject-matter jurisdiction over all things related to the Clean Water Act. Accordingly, I respectfully dissent.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.