High Court Review Sought Over Venue for Water Rule Challenge

By Amena H. Saiyid

Sept. 6 — A “fractured” federal court ruling that gave the U.S. Court of Appeals for the Sixth Circuit jurisdiction to review multiple Clean Water rule challenges has prompted the nation’s manufacturers to seek U.S. Supreme Court review Nat’l. Ass’n of Mfrs. v. DOD, U.S., No. Not yet available, 9/2/16 .

The National Association of Manufacturers, which is part of a larger coalition of agriculture and business groups, is asking the Supreme Court to accept its petition on grounds that the Sixth Circuit produced “three separate and incommensurate opinions addressing whether it has jurisdiction to consider the rule challenges.”

The petition was filed late Sept. 2.

At issue is the 1-1-1 decision issued in February by a three-judge panel for the Sixth Circuit, which the full court reaffirmed in late April, that 33 U.S.C. §1369(b)(1) vests exclusive jurisdiction with appeals courts to review challenges to the Clean Water Rule (RIN:2040-AF30), or waters of the U.S. rule (WOTUS) as it is commonly known. The Sixth Circuit, which has stayed the rule nationwide, will start reviewing briefs arguing the rule’s legality, starting Sept. 30.

The manufacturers say the Sixth Circuit “erred” in giving itself the legal jurisdiction under 33 U.S.C. §1369(b)(1)(F), “even though the rule does not ‘issu[e] or den[y] any permit’ but instead defines the waters that fall within Clean Water Act jurisdiction.”

Appeals Allowed for Seven Activities

The provision, 33 U.S.C. §1369(b)(1), allows appeal court reviews for seven very specific Clean Water Act activities, including approvals and denials of effluent limits and discharge permits.

The manufacturers in their petition claimed challenges that don’t fit neatly into the seven categories that should be reviewed at the federal district courts as required under the Administrative Procedure Act.

Moreover, the petition said two of the three Sixth Circuit judges didn’t even agree that this provision applies to the Clean Water Rule. And it said that two of the judges who did agree on allowing the Sixth Circuit to review the water rule challenges said they were bound by precedent set by the Sixth Circuit in a 2009 ruling in Nat’l Cotton Council of America v. EPA (553 F.3d 927, 2009 BL 1441, 68 ERC 1129 (6th Cir.2009)).

“This Court’s review is urgently required to determine where jurisdiction lies for the WOTUS Rule challenges, resolve the circuit split on Section 1369(b)’s meaning, and guide the federal courts in their future application of the provision,” the petition said.

Rachel Jones, NAM energy and resource policy director, told Bloomberg BNA that manufacturers need to quickly identify which court to seek justice.

Supreme Court review is needed because the appellate courts have been split over how to apply this provision of the Clean Water Act to rules that don’t fit neatly into that category.

“It is very important that we clear this up now before we move onto some of the other arguments related to this case,” Jones said.

Coalition Support

The American Farm Bureau Federation is part of the coalition of agriculture, business and manufacturing groups challenging the rule in the Sixth Circuit and various other courts.

“We only named NAM on the petition because it had the clearest standing to petition the Supreme Court, because it filed its lawsuit only in the district court (not in both district and appellate court as most of us did),” Ellen Steen, general counsel to the Farm Bureau, told Bloomberg BNA in a Sept. 6 e-mail.

Reed Hopper is principal attorney for the Pacific Legal Foundation that is representing a whole host of western cattlemen groups in a lawsuit over the water rule in the U.S. District Court for the District of Minnesota. Hopper told Bloomberg BNA that the Pacific Legal Foundation would file a brief supporting the NAM petition on behalf of these groups, which include cattlemen’s associations in Washington state, California and Oregon.

Supreme Court Acceptance Doubtful

Vermont Law School Professor Patrick Parenteau told Bloomberg BNA he doubts that the Supreme Court would grant certiorari.

“Even though I think the 6th Circuit panel got it wrong, I do not think the Court will grant the cert petition for several reasons,” Parenteau said in a Sept. 6 e-mail. “There is no final judgment so this would be interlocutory appeal. It is unusual for the Court to intervene absent compelling circumstances which do not exist here.”

Parenteau said “the rule has been stayed so there is no prejudice to the petitioners from waiting for a final judgment.”Unlike Parenteau, Richard Stoll, a partner with the Milwaukee and Washington D.C. offices of Foley & Lardner LLP, said there is a decent chance the Supreme Court would accept the petition because it needs only four votes to grant certiorari.

That said, “It is pretty extraordinary for the Court to take up something that is ‘interlocutory,’ but the Court has been known to do some pretty extraordinary things lately-–think staying the Clean Power Plan,” Stoll told Bloomberg BNA in a Sept. 6 e-mail.

Stoll has consistently described the legal battles surrounding the water rule as “absurd.” In his e-mail, he said the NAM petition simply reiterates “the incredible mess we’re now in.” “Since only a definitive ruling by the Supreme Court can undo this mess, I think the Court ought to take this up now,” Stoll said.

States Ready for Ruling on Merits

The legality of the water rule is being challenged by 32 states in federal appellate and district courts while only seven states and the District of Columbia are supportive of the rule.

“I, like the members of Association of Clean Water Administrators, am very ready to settle the issue of which court should hear the case and get on with addressing the merits of the rule,” Julia Anastasio, executive director and general counsel for the Association of Clean Water Administrators, which represents state and interstate water officials, said in a Sept. 6 e-mail to Bloomberg BNA.

Anastasio said she agreed that a decision by the Supreme Court might help move the litigation along. “However, I am not sure that cert is appropriate at this time and if we are not better to continue to let the issue play out in the circuit court. We do not have a full Supreme Court bench and we cannot be sure the Court would issue an opinion, or group of opinions, that completely clears up the question of jurisdiction,” Anastasio said.

NAM is represented by Timothy Bishop and Michael Kimberly, partners with Mayer Brown LLP, as well as by Linda Kelly, Quentin Riegel and Leland Frost of the Manufacturers’ Center for Legal Action.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

The National Association of Manufacturers cert petition to the U.S. Supreme Court is available at http://src.bna.com/iiI

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