WATER POLICY: Obama admin wins jurisdiction fight over contentious rule
AN E&E PUBLISHING SERVICE
Tiffany Stecker and Jeremy P. Jacobs, E&E reporters
Published: Monday, February 22, 2016
A federal appeals court panel today said that it will rule on challenges to the Obama administration’s hot-button Clean Water Rule.
A divided 6th U.S. Circuit Court of Appeals panel in Cincinnati ruled 2-1 that it has jurisdiction to hear numerous lawsuits challenging the U.S. EPA-Army Corps of Engineers rule.
The decision is a small victory for the agencies, who sought to keep the cases in the appeals court and avoid fights in scattered federal district courts that might be sympathetic to the challengers’ arguments.
The 6th Circuit has put the rule on hold while the lawsuits play out. That stay remains in effect after today’s ruling.
In the majority opinion, Judge David McKeague interpreted the Clean Water Act to say that certain actions from the EPA administrator must be sent directly to the appeals court, bypassing the district court.
Supreme Court and appeals court “precedents support the Agencies’ position that this court does have jurisdiction,” wrote McKeague, a President George W. Bush appointee.
The Clean Water Act provides only vague language on the issue of what challenges may be filed in an appellate court. There are seven criteria, and McKeague acknowledged that none appear to speak directly to the administration’s rule, which defines what tributaries and wetlands qualify for federal protections.
McKeague said that the government’s argument “on its face … is not compelling.”
However, one criterion is challenges to permitting decisions. And McKeague said the rule will have an indirect effect on permitting.
By defining what is a “waters of the United States,” he wrote, “the Rule undeniably has the indirect effect of altering permit issuers’ authority to restrict point-source operators’ discharges into covered waters.”
He added, “I conclude that Congress’s manifest purposes were best fulfilled by our exercise of jurisdiction to review the instant petitions for review of the Clean Water Rule.”
The panel’s other two judges wrote separately, each expressing disappointment in the decision.
Judge Richard Griffin, another George W. Bush appointee, concurred with McKeague’s conclusion but only because of a 6th Circuit precedent in a 2009 case on permitting for pesticide use, National Cotton Council v. EPA.
“Were it not for National Cotton, I would grant the motions to dismiss,” Griffin wrote.
Absent from that holding, Griffin said he would not have ruled for the government.
Judge Damon Keith, appointed by President Carter, wrote the dissenting opinion, arguing that National Cotton Council does not mean that the court must have jurisdiction over the Clean Water Rule litigation.
The judges heard arguments Dec. 8, 2015, on the narrow question of whether challenges to the rule belong in appeals courts or district courts.
The case at hand is the result of consolidated challenges from 18 states, agricultural groups and industry groups that claim the Clean Water Rule — also known as the Waters of the U.S. rule, or WOTUS — goes beyond EPA’s constitutional authority.
The Obama administration’s attorneys argued in December that the case should remain in the 6th Circuit.
Most of the challenges to the Clean Water Rule filed in district court have been thrown out or placed on hold pending the 6th Circuit’s decision. Only one judge, U.S. District Court Chief Judge Ralph Erickson for the District of North Dakota, is proceeding with the case regardless of the appeals court’s ruling.
The case in Erickson’s court remains active for now. A separate case raising the issue of jurisdiction was also appealed to the 11th U.S. Circuit Court of Appeals in Atlanta. The court put that case on hold pending a ruling from the 6th Circuit. Presumably it will now move forward and produce its own ruling on the jurisdiction question in the coming months.
Tags: clean water rule, CWA, policy, water
