6th Circuit

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."

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Sep 022015

The federal government and the 13 states that won an injunction halting implementation of the Clean Water (or “waters of the U.S.”) rule are sparring over the geographic scope of the injunction (North Dakota v. U.S., 15-59-RRE-ARS, D. N.D.).

Both sides filed briefs Tuesday, Sept. 1, as required by Chief U.S. District Judge Ralph Erickson. The feds, as expected, are arguing that Erickson’s Aug. 27 order should apply only in the 13 states that brought the suit. The states contend that the injunction should be nationwide.

“[G]iving nationwide effect to the preliminary injunction would go beyond addressing the specific irreparable harms alleged by the Plaintiffs,” the government said in its brief. In addition, “Because the preliminary injunction is intended to preserve the status quo as to these Plaintiffs, it should not apply nationwide, encompassing waters in States that either have not challenged the Clean Water Rule or that have unsuccessfully sought to preliminarily enjoin it in separate judicial proceedings.”

The government cited two other district court decisions denying relief – one in Georgia’s Southern District and one in West Virginia’s Northern District. Judges in both cases said that jurisdiction over the disputes properly lies in the court of appeals, where eight petitions for review have been consolidated.

Said the government:

“The Plaintiff States cannot contend that if any district court in any proceeding where the Clean Water Rule is challenged finds that the criteria for preliminary injunctive relief have been satisfied, that court’s order is binding in all the other proceedings and throughout the nation. That logic would lead to the absurd situation where if a single regulated entity is able to persuade a single district court that it will potentially incur an irreparable harm, then the Clean Water Rule may be enjoined across the nation with respect to every single regulated and regulating entity, including those who benefit from and support the Rule, and even in the jurisdiction of district courts that have previously denied similar injunctive relief.”

“It would also be inappropriate to conclude, in the name of protecting state sovereignty, that this Court’s order to enjoin the Clean Water Rule applies in the nineteen States that have not challenged the Rule, seven of which have moved to intervene in the Sixth Circuit proceedings to, in fact, support it,” the government said.

The states, however, asserted, “The Agencies persistently characterize the scope of the Rule as ‘nationwide.’ The Court’s Injunction Order properly fits the Rule’s scope and should be read to extend nationwide as well. No useful purpose is served by allowing a wildly overreaching Rule to take geographically defined effect for the interim period between the issuance of the preliminary injunction and final resolution of the case. This point has special salience given that the Agencies are seeking to reassert a massive jurisdictional land-grab that the Supreme Court cautioned them against in both SWANCC and Rapanos.

“A nationwide injunction is necessary to prevent inconsistent rulings on the scope of CWA jurisdiction during the pendency of this litigation, while ensuring a consistent and uniform application of the CWA throughout the country," the states argued. "The Court should affirm that the Injunction Order addresses these concerns by applying nationwide.”

“The Agencies have also argued that harm would be caused by ‘conflicting’ interim applications that would work ‘to the detriment of the plaintiffs, the regulated community, and the public.’ See Brief in Support of the Motion of the United States for Transfer, MDL No. 2663, Doc.1-1 at 11: Memo in Support of Defendants’ Motion to Stay Pending a Ruling from the Judicial Panel on Multi-District Litigation under 28 U.S.C. § 1407 to Transfer and Consolidate at 6, No. 3:15- cv-00059 (D.N.D. July 21, 2015), ECF No. 12-1. The Agencies cannot have it both ways. They cannot be concerned about uniform application and consistency when selling the country on the need for the Rule, but abandon those  principles when faced with litigation adversity. This type of litigation tactic should not be rewarded by limiting the scope of the Court’s Injunction Order.”

More links

Opinion and order in Murray Energy Corp. v. EPA (15-110,  N.D. W. Va.) Aug. 26

Order denying P.I. in Georgia v. EPA (15-79, S.D. Ga.) Aug. 27, 2015

Motion by States of New York, Connecticut, Hawaii, Massachusetts, Oregon, Vermont, and Washington, and the District of Columbia, to Intervene in Support of Respondents in Docket No. 15-3751 and In Each of the Related Cases, Aug. 28, 2015

Memo in Support of Defendants’ Motion to Stay Pending a Ruling from the Judicial Panel on Multi-District Litigation under 28 U.S.C. § 1407 to Transfer and Consolidate (the district court actions)

Order consolidating petitions for review in Sixth Circuit