Sixth Circuit Hears Oral Arguments on Water Rule

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By Bebe Raupe

Dec. 8 — Predicting that judicial authority over a rule seeking to refine the reach of the Clean Water Act will ultimately be decided by the U.S. Supreme Court, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit heard oral arguments Dec. 8 on whether it is the appropriate venue to hear challenges to the rule.

Opponents of the Clean Water Rule, or “waters of the U.S.” rule issued in June by the Environmental Protection Agency and the U.S. Army Corps of Engineers generally think challenges should be heard at the district court level, not the appeals courts.

Arguing on behalf of 18 states and several industry groups that want the Sixth Circuit to dismiss the case over lack of jurisdiction, Ohio State Solicitor Eric Murphy told the panel that challenges to the rule rightfully belong in district courts under the Clean Water Act.

With the rule, the agencies are attempting to broadly expand their power but narrowly restrict the judicial review opportunities available for those challenging it, Murphy said, adding that the U.S. Supreme Court has twice rejected agency efforts to enlarge their authority beyond what the act allows.

Statute and precedent reflect that the jurisdiction to redress harm caused by the rule lies with the district courts, he said.

In October, the Sixth Circuit issued a nationwide stay on the rule that will remain in place until it settles the question of whether an appellate or a district court has jurisdiction to hear challenges to the clean water rule (197 DEN A-1, 10/13/15).

The Sixth Circuit said that its stay on the rule would allow for “more deliberate determination” of whether the administration's rule is “proper” under federal law.

Wasting Judicial Resources

The EPA and the corps along with seven states—Connecticut, Hawaii, Massachusetts, New York, Oregon, Vermont and Washington—and the District of Columbia and a coterie of environmental groups are requesting that the Sixth Circuit retain jurisdiction.

Martha Mann, an attorney with the U.S. Department of Justice, told the court that giving district courts jurisdiction would be akin to wasting judicial and party resources, resulting in substantial delays in resolving challenges to the rule.

Moreover, the argument that jurisdiction lies in the district courts under Section 509(b)(1)of the Clean Water Act is misplaced, she said, citing precedent in Sackett v. EPA (132 S. Ct. 1367, 73 ERC 2121, 2012 BL 67234 (2012)), in which the Supreme Court held that a compliance order issued by the EPA prior to taking civil enforcement action was indeed subject to judicial reviews. Sackett, she said, does not turn on whether original jurisdiction was in the district courts versus the appeals courts, but on whether the challenged agency action was reviewable at all.

Jurisdictional Questions

Jurisdictional questions arise because the Clean Water Act is unclear as to where challenges to rules under that statute should be heard, attorneys have said, leading to multiple complaints and challenges filed in the district and appellate courts (235 DEN A-4, 12/8/15).

Section 509 (b)(1) of the Clean Water Act allows challenges to effluent limits and permit issuance or denials to be heard in appellate courts.

Appellate Judge David McKeague asked Mann why Congress gave “such convoluted instruction” with regard to the judicial review process under the Clean Water Act.

Mann said that while the phrasing could, perhaps, be clearer, with regard to the Clean Water Rule, the act's less-than-artful wording “does not take it out of the 509 bucket.”

McKeague also asked her whether the current U.S. Supreme Court would read this language practically or textually, noting this is the judicial panel that will eventually settle the question.

Mann said the high court would probably take a practical rather than constrained approach to the judicial review provisions in the act.

Should Not Stand

Murphy said that given the rule's “manifest illegality” and harm to the states, it should not be allowed to stand.

Judge Richard Allen Griffin asked Murphy if the court shouldn't be compelled to follow precedent set by Nat'l Cotton Council v. EPA (6th Cir. 2009) where the Sixth Circuit ruled on the validity of a final rule issued by the EPA under the Clean Water Act .

The nationwide scope and importance of the Clean Water Rule seems to support a centralized review in the courts of appeals, said Griffin.

When asked by McKeague why district court consideration of the rule is preferable to appellate scrutiny, Murphy said more reviews would clarify the rule by allowing several courts to consider it.

The Eleventh Circuit also will be considering the court's jurisdiction question during oral arguments on Feb. 22 (219 DEN B-1, 11/13/15).

Attorneys agree that the ban on the rule that the U.S. District Court for the District of North Dakota imposed on 13 states in late August will still be in effect if the Sixth Circuit finds that an appellate court has no jurisdiction over hearing challenges to the clean water rule (North Dakota v. EPA, 2015 BL 277809 (2015); 173 DEN A-11, 9/8/15)

To contact the reporter on this story: Bebe Raupe in Cincinnati at braupe@bna.com

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