Energy and Environment Monitor

Deciding Who Will Decide

January 18, 2017

By: Blair M. Gardner

The controversy over EPA’s definition of “waters of the United States” (WOTUS) took another meander on January 13. United States Supreme Court surprised many by granting a petition for certiorari to decide which court – the federal district or circuit courts – have the authority to adjudicate disputes over a regulation defining a key term of the Clean Water Act (CWA). Ever since EPA and the Corps of Engineers issues their final WOTUS definition on June 29, 2015, the rule has been mired in legal challenges over not only what the regulation means, but more critically, which court gets to decide that question.

Challenges to the regulation began almost immediately upon its publication almost 19 months ago. Given the national applicability of the rule, and the immense variation in waters and wetlands governed by it, suits were filed across the United States in various district courts. One district court in North Dakota found that it had jurisdiction to rule on the merits of the petition; at least two other district courts decided they did not. The cases were consolidated before the Court of Appeals for the Sixth Circuit in Cincinnati. In a decision issued last February, a three judge panel of the Sixth Circuit decided that it did have jurisdiction to decide the case. And this is where it begins to get strange.

Congress grants jurisdiction to the circuit courts to review EPA’s actions in seven enumerated instances. The Sixth Circuit decided that the WOTUS rule was either a “limitation” or a permitting decision under §509(b)(1)(F) or (G) of the CWA. It reached this conclusion after reviewing numerous decisions of the Supreme Court and the other circuit courts, including the Sixth Circuit’s own decision in a 2009 case, National Cotton. A second judge on the panel concluded that the agencies’ action in promulgating the definition fit neither of the statutory categories. He also concluded that the Sixth Circuit’s decision in National Cotton was incorrectly decided. Nevertheless, it was a binding rule of law which the panel was bound to follow. And therefore, the judge concurred in the judgment of the court. The third member of the panel dissented and concluded that the Sixth Circuit had no jurisdiction to hear the case.

The upshot of the decision was that the parties in the various consolidated cases were ordered to brief the merits of the challenge. On January 13, the EPA and Corps submitted their response, a 246 page document which asserts why the federal agencies will be able to assert legal authority over virtually any moist patch of the United States. Because the Sixth Circuit had already issued a nationwide stay of WOTUS pending its final decision, the stay will almost certainly remain in effect while the Supreme Court takes up the difficult question of where jurisdiction lies under the CWA to hear the case.

The Supreme Court has rarely found consensus in its CWA decisions. This case is likely to change that trend. The case is National Association of Manufacturers v. Department of Defense, No. 16-299.

The article was authored by Blair M. Gardner, Jackson Kelly, PLLC.