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April 21 — The U.S. Court of Appeals for the Sixth Circuit denied six petitions April 21 seeking an en banc rehearing on the question of the appropriate venue for challenges to the federal Clean Water Rule.
In issuing the April 21 order, the Sixth Circuit established itself as the court to hear multiple challenges to the rule (RIN 2040-AF30) issued in June 2015 by the Environmental Protection Agency and the U.S. Army Corps of Engineers to clarify the reach of the Clean Water Act. The decision to deny the request for rehearing before the full court came after the original three-judge panel and the full court reviewed the petitions.
“The original panel has reviewed the petitions for rehearing and concludes that the issues raised in the petitions were fully considered upon the original submission and decision of the cases. The petitions then were circulated to the full court. No judge has requested a vote on the suggestion for rehearing en banc,” the court said.
At issue was the splintered 1-1-1 ruling by a three-judge panel of Sixth Circuit Feb. 22, which held that it—not a federal district court—had jurisdiction to hear the multiple challenges to the rule.
The Feb. 22 ruling didn't resolve which federal court has purview over the rule because it wasn't unanimous.
Rather, two of the three judges agreed, based on different rationales, that the appeals court has jurisdiction, while the third judge dissented. To complicate matters further, two of the three judges agreed that the Clean Water Act didn't authorize an appeals court to review challenges to the rule (Ohio v. U.S. Army Corps of Eng'rs (In re EPA & Dep't of Def. Final, 81 ERC 21652016 BL 49440, 6th Cir., No. 15-3799, 2/22/16; 47 ER 637, 2/26/16).
The six petitions for rehearing included ones filed by a coalition of 13 states led by North Dakota, a 19-member coalition of agriculture, manufacturing, and business interests led by the American Farm Bureau federation, and a coalition of power plants represented by the Utility Water Act Group.
The 13-state coalition is also trying to persuade the U.S. District Court for the District of North Dakota that the Sixth Circuit's ruling can't be considered binding nationwide because the “decision turned entirely on a Sixth Circuit precedent not binding on this Court” (47 ER 692, 3/4/16)
The district court in North Dakota has been conducting its own review of the rule and has blocked the rule from being implemented in the 13 states where it has jurisdiction, notwithstanding that the rule remains blocked nationwide by the Sixth Circuit.
The states also wrote that two of the three judges wrote that Sixth Circuit review of the rule was contrary to the Clean Water Act.
The Eleventh Circuit has been waiting for the Sixth Circuit's ruling on the question of venue before moving forward with its review of the rule's substance, but a coalition of 11 states led by Georgia is urging that court to rely on its own legal precedent to decide on the question of venue.
Meanwhile, the Tenth Circuit a day earlier accepted petitions from a variety of business groups and the state of Oklahoma over this same question.
“I think there is a reasonable chance that the Eleventh Circuit or the Tenth Circuit could decide the question differently,” Ellen Steen, general counsel for the farm bureau, told Bloomberg BNA April 21. “Then you would have a split in circuits that would need to be resolved by the U.S. Supreme Court.”
Even with today's decision, a lot of uncertainty surrounds which court has jurisdiction to review the rule, she said. “I wouldn't be surprised if some of the parties in the Sixth Circuit seek Supreme Court review now.”
Steen didn't rule out the possibility of seeking Supreme Court review when asked whether the farm bureau would back a petition for writ of certiorari on the question of jurisdiction.
“It is under discussion,” she said.
Richard Stoll, partner in the Washington, D.C., and Milwaukee offices of Foley and Lardner LLP, said he doesn't believe the next step in this legal battle is the Supreme Court.
“I can easily see how district courts from other circuits may refuse to feel bound by the 6th Circuit opinion on this issue—especially because the 6th Circuit 2-1 opinion had such a strong dissent and such an incredibly weak concurrence to get the 2-1 vote. And doubly especially because you have to stretch the heck out of the plain words of the CWA to make the rule fit one of the types of actions that are to be reviewed in the Courts of Appeals,” Stoll wrote in an April 21 e-mail to Bloomberg BNA.
Stoll was referring to the Clean Water Act provision (33 U.S.C. § 1369(b)(1)) that allows appellate reviews of Clean Water Act permits and effluent limits. In contrast, the Administrative Procedure Act allows district court reviews in the absence of no legal remedy.
Vermont Law School Professor Patrick Parenteau told Bloomberg BNA in an April 21 ruling that “this case defies conventional wisdom. Just like Trump.”
Parenteau added that the first question is whether the district court in North Dakota will lift its injunction over the rule that it imposed over 13 states back in August 2015 and dismiss the case even though it's close to being argued on summary judgment.
“The states are arguing the 6th Circuit decision has no effect on North Dakota or any of the other cases. As crazy as that sounds it just might be right,” Parenteau said.
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The U.S. Court of Appeals for the Sixth Circuit order in Ohio v. U.S. Army Corps of Eng'rs (In re EPA & Dep't of Def. Final Rule is at http://src.bna.com/ei3.
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