Sixth Circuit Stays Clean Water Rule Nationwide

October 9, 2015 | Kristine A. Tidgren

The United States Court of Appeals for the Sixth Circuit has now stayed the Clean Water Rule nationwide. This temporary ruling brings uniformity to the patchwork of enforcement that has existed since the Rule’s August 28 effective date. As we’ve detailed in past articles, a United States District Court for the District of North Dakota temporarily enjoined enforcement of the Rule on August 27. The North Dakota court ruled the following week, however, that the injunction applied only to the 13 states involved in the North Dakota litigation.

Two other district courts (in West Virginia and Georgia) had ruled that they did not have jurisdiction to consider the validity of the Rule because jurisdiction for such a determination rested only with the circuit courts pursuant to 33 U.S.C. § 1369(b)(1) of the Clean Water Act. Eighteen states, while arguing that the district courts had jurisdiction to hear their claims, filed protective petitions for review in their respective circuit courts. These cases were consolidated into the Sixth Circuit by order of the Judicial Panel on Multi-District Litigation.

That brings us to today’s decision. While the jurisdictional question is still up in the air, the Sixth Circuit has issued a temporary stay of the Rule pending its determination of the jurisdictional issue. A dissenting justice (the order was a 2-1 decision) argued that if the Sixth Circuit does not have jurisdiction to review the Rule, it does not have jurisdiction to issue the stay. The majority stated in response, “We have no doubt of our authority, however, 'to make orders to preserve the existing conditions and the subject of the petition[s]' pending our receipt and careful consideration of briefing on the jurisdictional question.” The court noted that briefing will be completed and the jurisdictional question ripe for opinion “in a matter of weeks.”

The Court went on to state, without mincing words, that it believes the petitioners have a "substantial possibility of success on the merits."  As did the district court judge in North Dakota, the Sixth Circuit found that it is likely the petitioners will show that the new Rule is at odds with current law and that the EPA and the U.S. Army Corps violated the Administrative Procedure Act (APA) in issuing the Rule.

Specifically, the Court stated with respect to the “bright line” definitions of “tributaries” and “adjacent waters” set forth in the Rule:

Petitioners first claim that the Rule’s treatment of tributaries, “adjacent waters,” and waters having a “significant nexus” to navigable waters is at odds with the Supreme Court’s ruling in Rapanos, where the Court vacated the Sixth Circuit’s upholding of wetlands regulation by the Army Corps of Engineers. Even assuming, for present purposes, as the parties do, that Justice Kennedy’s opinion in Rapanos represents the best instruction on the permissible parameters of “waters of the United States” as used in the Clean Water Act, it is far from clear that the new Rule’s distance limitations are harmonious with the instruction.

At to the purported violation of the APA, the Court stated:

Moreover, the 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. As a further consequence of this defect, petitioners contend, the record compiled by respondents is devoid of specific scientific support for the distance limitations that were included in the Final Rule. They contend the Rule is therefore not the product of reasoned decision-making and is vulnerable to attack as impermissibly “arbitrary or capricious” under the APA, 5 U.S.C. § 706(2).

In the extant briefing, respondents have not persuasively rebutted either of petitioners’ showings. Although the record compiled by respondent agencies is extensive, respondents have failed to identify anything in the record that would substantiate a finding that the public had reasonably specific notice that the distance-based limitations adopted in the Rule were among the range of alternatives being considered...At this stage, at least, we are satisfied that petitioners have met their burden of showing a substantial possibility of success on the merits.

The Court concluded that a stay would maintain the "status quo," temporarily silencing “the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing.” Although the Court acknowledged the need for a new rule in light of uncertain Supreme Court precedent, it found that a stay would allow 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.”

 “The sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being.”

And so closes another chapter of the Clean Water Rule narrative, at least for today. In several weeks, the same court will be ruling whether it has jurisdiction to decide the merits of the case. If it rules in favor of the petitioners on that issue, the district courts will begin (as the district court in North Dakota has already done) the process of determining the validity of this controversial Rule. It is possible that we could see a consolidation of those cases as well.

We will keep you posted.

The case is In Re: Environmental Protection Agency and Department of Defense, Final Rule: Clean Water Rule: Definition of "Waters of the United States", 80 Fed.Reg. 37,054, Published on June 29, 2015. Read the full order here.