Industry Groups Ask Judges to Reconsider Jurisdiction Ruling on CWA

Industry groups ask judges to reconsider jurisdiction ruling

Tiffany Stecker, E&E reporter
Published: Tuesday, March 1, 2016

A coalition of agriculture, building and other industry groups yesterday asked a federal appeals court to reconsider a decision on the Obama administration’s contentious Clean Water Rule, requesting that the court’s full panel of active judges rehear the case.

The groups’ petition is a response to the 6th U.S. Circuit Court of Appeals decision last week to move forward with challenges to the water rule, also known as the Waters of the U.S. rule, or WOTUS, in the appeals court. A three-judge panel ruled that federal appellate courts — not local district courts — have jurisdiction to hear such challenges under the Clean Water Act (Greenwire, Feb. 22).

The 19 parties, which include the American Farm Bureau Federation, American Petroleum Institute and National Association of Home Builders, wrote in their appeal for an en banc rehearing that keeping the cases in appeals court would amount to “an enormous waste of party and judicial resources” if it turns out the court lacked jurisdiction in the first place.

The three judges had split on the jurisdiction question. Judge David McKeague’s majority opinion was joined by a lukewarm concurring opinion from Judge Richard Griffin, who said he wouldn’t have ruled for the government except he felt bound by a 2009 precedent in National Cotton Council v. EPA. Both judges were appointed by President George W. Bush.

This split, with Judge Damon Keith’s dissenting opinion, highlights the uncertainty behind the decision and leaves it ripe for an en banc review, the petitioners argued.

The coalition described the decision as one in which a “number of judges on the court have come to doubt the validity of [its] own precedent,” citing a 2010 6th Circuit case.
“Without guidance from the full court, moreover, district courts across the country will be left uncertain of whether they should proceed to the merits of the … rule challenges filed before them,” they wrote.

The Cincinnati-based 6th Circuit decision last week on the procedural question marked a victory for the Obama administration’s lawyers, who argued in December that the cases should be heard in appeals court. Challengers of the rule said deliberations should occur at the district level, where states and industry representatives have sued the administration in courts scattered across the United States.
The U.S. EPA-Army Corps Waters of the U.S. rule, which seeks to redefine which streams and wetlands receive automatic protection under the Clean Water Act, triggered dozens of lawsuits after the regulation was finalized last year. The 6th Circuit has put the rule on hold.

The 11th U.S. Circuit Court of Appeals in Atlanta is set to make its own decision on the court jurisdiction question. The court canceled oral arguments nearly two weeks ago pending the 6th Circuit decision. An en banc review might delay the 11th Circuit’s moves.

Reprinted from Greenwire with permission from Environment & Energy Publishing, LLC – 202-628-6500

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