Oct 142015

In the latest development in the WOTUS wars. a panel of federal judges has declined to move all the outstanding cases to the District of Columbia District Court, as requested by the Environmental Protection Agency.

That leaves nine cases active in seven districts. (See the order below for a list of those cases.)

"On the basis of the papers filed and hearing session held, we conclude that Section 1407 centralization will not serve the convenience of the parties and witnesses or further the just and efficient conduct of this litigation," the judges assigned to the case said.

Those judges are Marjorie O. Rendell, Charles R. Breyer, Lewis A. Kaplan, Ellen Segal Huvelle, R. David Proctor and Catherine D. Perry.

Said the court:

"The resolution of these actions will involve only very limited pretrial proceedings. Discovery, if any, will be minimal, as these cases will be decided on the administrative record. Motion practice will consist of motions regarding that record, motions for preliminary injunctive relief, and summary judgment motions. In short, these actions will turn on questions of law with respect to whether the EPA and the Corps exceeded their statutory and constitutional authority when they promulgated the Clean Water Rule. Accordingly, centralization under Section 1407 is inappropriate."

. . .

"[C]centralization of these actions would be problematic due to their procedural posture. Several motions for preliminary injunctive relief already have been ruled upon, resulting in different jurisdictional rulings by the involved courts. Two courts have held that only the United States Courts of Appeals have jurisdiction over these regulatory challenges, whereas another reached the opposite conclusion, that jurisdiction over these actions properly resides in the United States District Courts. 3 Centralization thus would require the transferee judge to navigate potentially uncharted waters with respect to law of the case. This procedural complication also weighs against centralization in this instance."

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. […]

Jun 092015

WOTUS rule also targeted The House Appropriations Committee’s proposed spending bill for the Department of the Interior would remove gray wolves in Wyoming and the Great Lakes from the list of threatened and endangered species. The bill also would delay for a year any decision on listing of the greater sage-grouse by prohibiting the spending […]

May 272015

EPA and the Army Corps of Engineers have announced the new “waters of the U.S.” rule. Press release from EPA, Corps Link to rule Press releases, news coverage NAHB statement American Farm Bureau Federation statement National Farmers Union: “NFU’s policy opposes any expansion of jurisdiction under the Clean Water Act (CWA), but EPA has made […]

May 222015

The Gray Lady, as she is sometimes known, has an article today predicting an announcement of the controversial “waters of the U.S.” rule from the Obama Administration “in the coming days.” Coral Davenport of the Times reports that the announcement could come as soon as today or early next week. EPA spokesman Robert Daguillard would […]