Oct 092015

In 2-1 ruling, appeals court says a nationwide stay "honors the policy
of cooperative federalism that informs the Clean Water Act"

The Sixth Circuit has stayed implementation of the "Waters of the United States" (WOTUS) rule (or, as EPA would have it, the Clean Water Rule).

The two judges in the majority were Circuit Judges David W. McKeague and Richard Allen Griffin. Senior Sixth Circuit Judge Damon J. Keith dissented.

In a sense, the split decision reflected a division of both young and old and Democrat and Republican: Keith, 93, is the longest-serving member of the court. He was nominated by President Jimmy Carter and officially joined the court on Oct. 21, 1977 -- 38 years ago. (He's somewhat of a Civil Rights and legal legend: See his Wikipedia entry.)

McKeague and Griffin were nominated by President George W. Bush and joined the court on the same day -- June 10, 2005. And perhaps it's not a clash of young and old; McKeague is 68, and Griffin, 63.

In their part of the order, they said:

"A stay allows for a more deliberate determination whether this exercise of Executive power, enabled by Congress and explicated by the Supreme Court, is proper under the dictates of federal law. A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing. A stay honors the policy of cooperative federalism that informs the Clean Water Act and must attend the shared responsibility for safeguarding the nation’s waters."

EPA spokesperson Melissa Harrison told The Hill, "The agencies respect the court’s decision to allow for more deliberate consideration of the issues in the case and we look forward to litigating the merits of the Clean Water Rule. The Clean Water Rule was developed by the agencies to respond to an urgent need to improve and simplify the process for identifying waters that are and are not protected under the Clean Water Act, and is based on the latest science and the law.”


Home builders happy  |  The Hill  |  Agri-Pulse  | Boehner statement

Beef Magazine  |  Jonathan Adler weighs in from The Volokh Conspiracy:

A particularly interesting aspect of the court’s decision is that there is some question as to whether the court of appeals has jurisdiction to consider a challenge to the rule under the CWA. Specifically, there is a question whether, under the terms of the CWA, challenges to the rule are to be brought in district or circuit courts. Other courts considering WOTUS rule challenges have split on this question. Also interesting is that those parties seeking a stay — those opposing the rule — are also those who are arguing that the challenges should be heard in district courts, and that Sixth Circuit lacks jurisdiction to hear the initial challenge.


The present circumstances pose a threshold question: What is the status quo? Petitioners ask us to stay enforcement of the Clean Water Rule that went into effect on August 28, 2015. They ask us to restore the status quo as it existed before the Rule went into effect. Respondents’ position is that the status quo is best preserved by leaving the Rule alone. Considering the pervasive nationwide impact of the new Rule on state and federal regulation of the nation’s waters, and the still open question whether, under the Clean Water Act, this litigation is properly pursued in this court or in the district courts, we conclude that petitioners have acted without undue delay and that the status quo at issue is the pre-Rule regime of federal-state collaboration that has been in place for several years, following the Supreme Court’s decision in Rapanos v. United States, 547 U.S. 715 (2006).

The states seeking the stay are Ohio, Michigan, Tennessee, Oklahoma, Texas, Louisiana, Mississippi, Georgia, West Virginia, Alabama, Florida, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah and Wisconsin.

The court found the final rule vulnerable to notice-and-comment claims:

"[T]he rulemaking process by which the distance limitations were adopted is facially suspect. Petitioners contend the proposed rule that was published, on which interested persons were invited to comment, did not include any proposed distance limitations in its use of terms like “adjacent waters” and significant nexus.” Consequently, petitioners contend, the Final Rule cannot be considered a “logical outgrowth” of the rule proposed, as required to satisfy the notice-and-comment requirements of the APA, 5 U.S.C. § 553. See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007)."

Among the respondent-intervenors are "several environmental conservation groups and several ... states who support the new rule: New York, Connecticut, Hawaii, Massachusetts, Oregon, Vermont, Washington and the District of Columbia."

Ironically, the petitioners, subsequent to the filing of their petitions, had "moved the court to dismiss their own petitions for lack of subject matter jurisdiction," an issue that has yet to be decided (and on which Jonathan Adler remarked in his commentary).

Dissenting, Circuit Judge Keith said, "One of the issues in this case is whether this court has exclusive jurisdiction to review the Rule in the first instance. We can enjoin implementation of the Rule if we determine that we have jurisdiction. But until that question is answered, our subject-matter jurisdiction is in doubt, and I do not believe we should stay implementation of the Clean Water Rule."

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