I have written prior alerts regarding the “Clean Water Rule,” where the EPA attempts to describe the elements necessary to identify bodies of water subject to federal jurisdiction under the Clean Water Act. This identification is often critical to determining if an area constitutes wetlands (so that development work may require a permit from the United States Army Corps of Engineers) or if a body of water is subject to the EPA’s discharge permitting program.
The challenges in determining what waters are “jurisdictional” have resulted in multiple court cases, including the United States Supreme Court’s 2006 decision in Rapanos v. United States. That decision featured multiple opinions and an apparent 4-4-1 split, with Justice Kennedy taking what many saw as a middle ground in his concurrence. With the current Supreme Court having a vacant seat, the ongoing ramifications of Rapanos are unclear. Those familiar with Rapanos and other cases addressing what waters are “jurisdictional” will know that the Clean Water Act, itself, provides little specificity to determine jurisdictional waters.
Recently the EPA issued the new “Clean Water Rule,” no doubt hoping to clarify the elements that determine jurisdictional waters. In multiple lawsuits, certain states and industry groups have challenged the EPA’s action, asserting that the Clean Water Rule would identify areas as subject to federal jurisdiction beyond what the Constitution or the Clean Water Act actually allow.
Not only is the Clean Water Act not very specific in identifying jurisdictional waters, a recent decision by the United States Court of Appeals for the Sixth Circuit demonstrates that it is also not particularly clear as to which court is proper to hear the challenge to the EPA’s Clean Water Rule.
In a recent decision styled In Re: U.S. Dep’t of Defense and U.S. Envtl. Protection Agency Final Rule: Clean Water Rule, the 6th Circuit had to determine if it was the proper court to consider the challenge to the Clean Water Rule. This decision came after the filing of multiple suits, some in the 6th Circuit and other federal courts of appeals, and many in federal trial level (district) courts. Based on federal court procedures for handling multiple related suits, a panel of judges assigned the case to the 6th Circuit, but this assignment did not decide if the case should be heard in a federal appeals court, or in a trial level court. Thus, the 6th Circuit had the preliminary task of determining if it, as an appeals court, was a proper court to hear the initial challenge.
For various strategic regions, the federal government argued that the courts of appeals were the proper courts to hear the initial challenge, while most of the industry and state opposition groups argued that individual trial level courts should hear the case.
In its recent decision, the 6th Circuit ruled that it had jurisdiction, although it seemed to reach this determination with some difficulty. As is usually the case, the 6th Circuit decision came from a randomly assigned three judge panel (out of fifteen active and several more senior judges on that court). Of the three judges, only one judge ruled, without reservation, that a court of appeals is an appropriate court to hear this case. Another judge agreed that the court of appeals is appropriate, but only because of a 2009 6th Circuit opinion that this judge thought was wrongly decided, but unfortunately binding.
The third judge disagreed with the other two. In a dissenting opinion, this judge argued that the 2009 decision did not control the challenge to the EPA’s Clean Water Rule. According to the dissent, no court of appeals should be hearing the initial challenge to the Clean Water Rule. The dissenting judge also stated that the plain language of the Clean Water Act, which has a section regarding when courts of appeals would be proper to hear challenges to the EPA’s actions, did not allow court of appeals review at this stage.
The industry and state opponents to the Clean Water Rule have requested en banc review, that is, a review of this decision by all 15 active judges in the 6th Circuit. This is a rarely used procedure, but this case might be one in which it is appropriate.
For a copy of the Sixth Circuit opinion, click here.