Sixth Circuit Finds it Has Jurisdiction to Decide Validity of Clean Water Rule

February 23, 2016 | Kristine A. Tidgren

In a divided 2-1 opinion, a three-judge panel ruled yesterday that the United States Court of Appeals for the Sixth Circuit has original jurisdiction to determine the validity of the Clean Water Rule.

The opinion followed oral argument in December on the question of whether Congress intended circuit courts or district courts to have original jurisdiction in a case such as this. Petitioners from around the country, including states and industry groups, have challenged the validity of the new Rule, which was effective August 28, 2015. Unsure of which courts had jurisdiction, the challengers filed complaints in various district courts, as well as protective petitions for review in the circuit courts. The petitions for review were consolidated into the Sixth Circuit by the Judicial Panel on Multi-District Litigation for handling as a multi-circuit case.

In October, the Sixth Circuit issued an order staying enforcement of the Rule nationwide pending further review. The court found that petitioners had shown a “substantial possibility of success on the merits of their claims and that the balance of harms militated in favor of preserving the status quo pending judicial review."  On the merits, the petitioners have argued primarily that (1) the Clean Water Rule violates the Tenth Amendment of the United States Constitution in that it strips from the States their jurisdiction to govern their own intrastate waters, (2) the Rule is an expansion of the agencies’ jurisdiction beyond that contemplated by the Clean Water Act, and (3) the agencies violated the Administrative Procedures Act in promulgating the new Rule. Specifically, the petitioners contend that the final Rule’s definition of “neighboring” waters was not included in the proposed rule and was thus not subject to notice and comment.

Yesterday’s ruling was not about the merits. Rather, it was a decision as to whether the Sixth Circuit has original jurisdiction to determine the merits. In its ruling, the court acknowledged that the plain language of the statute at issue, 33 U.S.C. § 1369(b)(1), seemed to suggest that jurisdiction would remain with the district courts. This is because the only sections of the statute even arguably giving original jurisdiction to the circuit courts allow for circuit court review of an administrator's action in (E) approving or promulgating any effluent limitation or other limitation or (F) issuing or denying any permit. While admitting that the petitioners had the better end of the “plain language” argument, the majority opinion stated that it must look beyond plain meaning to determine the true intent of Congress. “Even where statutory language may seem unambiguous, 'plain meaning, like beauty, is sometimes in the eye of the beholder.'"

But, this three-judge panel was fractured. The justice who wrote the opinion for the court found that Supreme Court precedent required original circuit court jurisdiction under both subsections (E) and (F) cited above. The concurring justice thought the circuit courts had original jurisdiction only under the 33 U.S.C. § 1369(b)(1)(F), and the dissenting justice thought the circuit courts did not have original jurisdiction at all.

The justice who wrote the opinion for the court urged that the circuit court had jurisdiction under both 33 U.S.C. § 1369(b)(1)(E) and (F). As to subsection (E), “approving or promulgating any effluent limitation or other limitation,” the justice based his decision on Supreme Court precedent in E.I. du Pont de Nemours Co. v. Train, 430 U.S. 112 (1977):

By clarifying the definition of “waters of the United States,” the Rule undeniably has the indirect effect of altering permit issuers’ authority to restrict point-source operators’ discharges into covered waters.  The alteration invariably results in expansion of regulatory authority in some instances and imposition of additional restrictions on the activities of some property owners.  These restrictions, of course, are presumably the reason for petitioners’ challenges to the Rule.  Hence, although the Rule is definitional in nature, it is undeniably, in the language of E.I. du Pont, a “basic regulation governing other individual actions issuing or denying permits.” 430 U.S. at 136.  To rule that Congress intended to provide direct circuit court review of such individual actions but intended to exclude from such review the definitional Rule on which the process is based, would produce, per E.I. du Pont, “a truly perverse situation.”  Id.  To avoid just such an outcome, the E.I. du Pont Court reasoned that Congress must have intended that both types of regulation would be subject to review in the same forum, i.e., the circuit courts. 

Although the concurring justice disagreed that the court had jurisdiction pursuant to the principles set forth in E.I. du Pont, he joined with the writer of the court’s opinion in finding that the court had jurisdiction under subsection (F), “issuing or denying any permit.” The concurring justice believed that the court was bound by its own precedent in National Cotton Council of America v. U.S. E.P.A., 553 F.3d 927 (6th Cir. 2009) to find original jurisdiction in this case. Specifically, the majority found that National Cotton stood for the proposition that the circuit courts have jurisdiction not only to decide cases involving the issuance or denial of permits, but also to determine the validity of “regulations governing the issuance of permits.” The Clean Water Rule, the court reasoned, fell under this jurisdictional umbrella.

In his separate opinion, the dissenting justice argued that the statutory provisions clearly do not grant the circuit courts original jurisdiction to decide the validity of the Clean Water Rule. He argued that the concurring justice misread National Cotton and that his construction of the statute brings the section to its “breaking point”: “a foreseeable consequence of the concurrence’s reasoning is that this court would exercise original subject-matter jurisdiction over all things related to the Clean Water Act.”

For now, the Sixth Circuit will exercise its decided jurisdiction to review the validity of the Clean Water Rule. Further challenges are no doubt on the horizon.

The full opinion can be read here.