WATER POLICY: Court to decide small question with big impact on Obama rule
Jeremy P. Jacobs and Tiffany Stecker, E&E reporters
Published: Monday, December 7, 2015
A federal appeals court will grapple tomorrow with whether to review President Obama’s controversial rule defining the scope of the Clean Water Act.
The 6th U.S. Circuit Court of Appeals in Cincinnati will hold oral arguments in consolidated cases brought by 18 states, agricultural and industry groups that claim the Waters of the U.S. rule oversteps U.S. EPA’s constitutional authority.
Tomorrow’s arguments will focus narrowly on a critical procedural question: whether the 6th Circuit has jurisdiction to hear the case.
EPA and the Army Corps of Engineers unveiled the rule in May, arguing that it would provide certainty for which marshes, bogs, wetlands and ditches qualify for Clean Water Act protections. The rule sought to clarify the jurisdiction issue after two muddled Supreme Court rulings.
Lawsuits quickly followed that contended the regime infringed on states’ rights and violated the Constitution.
But because of vague language in the Clean Water Act, it was unclear whether the cases should be filed in federal district courts or appeals courts. As a result, more than a dozen were filed in both.
All but one district court has either ruled that it lacks jurisdiction or declined to rule on that question until the 6th Circuit resolves the issue. A federal district court judge in North Dakota, however, found that he does have jurisdiction and is proceeding with the case before him, which was brought by 14 states (Greenwire, Aug. 28).
The 6th Circuit has halted the rule nationwide while it considers jurisdiction (Greenwire, Oct. 9).
Observers expect the 6th Circuit to rule quickly on whether it will keep the more than a dozen consolidated cases in its courtroom.
The Obama administration has pressed for that resolution, which would expedite the litigation and allow the administration to set the groundwork for a case that may eventually reach the Supreme Court after Obama leaves office.
Opponents of the rule, however, contend that the cases should first be heard in federal district courts. They have pressed the North Dakota court to move forward with that case quickly.
That could lead to multiple federal district court judges producing conflicting rulings that would then need to be appealed. In that scenario, the litigation would stretch out for years. And if a Republican were to win the White House next year, it is unlikely that administration would strongly defend the rule in court.
Arguments in In re: EPA and Department of Defense Final Rule are scheduled for 1:30 p.m. EST at the 6th Circuit courthouse in Cincinnati.
Notably, the 6th Circuit’s decision may not entirely settle the jurisdiction issue. A separate case, brought by Georgia and 10 other states, is pending at the Atlanta-based 11th U.S. Circuit Court of Appeals. That lawsuit is an appeal of a district court ruling that held jurisdiction belonged at an appellate court. The 11th Circuit is scheduled to hear oral arguments on the issue in February.
The 6th and 11th circuits could reach opposite conclusions, paving the way for the jurisdiction question to reach the Supreme Court.
The 18 states challenging the rule nationwide: Alabama, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, West Virginia and Wisconsin.
Seven states and the District of Columbia have intervened in the case supporting the administration. They are Connecticut, Hawaii, Massachusetts, New York, Oregon, Vermont and Washington.
Tags: clean water rule, federal, policy, water