As we previously covered, a joint rule by the
U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers − the “Clean Water Rule: Definitions of ‘Waters of the United States’” (WOTUS) − has
been the subject of litigation across the country since its publication in June 2015. Below is a summary of additional court rulings and pleadings from the
past few weeks that will impact where and when the merits of the WOTUS rule are heard.
On February 22, 2016, a three-judge panel in
In re: Environmental Protection Agency and Department of Defense Final Rule: Clean Water Rule held that the Sixth Circuit (rather than district courts) had jurisdiction over the petition for review of the Clean Water Rule. Over the next month,
various industry groups filed petitions for rehearing en banc, opposed by the EPA and the Army Corps. Central to the arguments in those motions was
the degree to which the Sixth Circuit decision of In re: EPA and National Cotton conflicted with the Supreme Court’s decision in E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112 (1977).
April 21, 2016:
The Sixth Circuit
denied six petitions for rehearing en banc, issuing
an order that states the “issues raised in the petitions were fully considered upon the original submission and decision of the cases,” and that no judge
requested a vote on the issue of rehearing.
District Court Litigation
Following the Sixth Circuit’s February 2016 decision regarding its jurisdiction over WOTUS rule challenges, district courts across the country continue to
dismiss challenges to the rule on jurisdictional grounds. District courts that have issued such orders in the past two months include the Southern District of Ohio,
Northern District of Oklahoma, and the District of Arizona (Minute Order
Civil Case Terminated per 28 Notice of Voluntary Dismissal).
In the District of North Dakota, however, Judge Erickson’s August 2015
order finding jurisdiction and enjoining the WOTUS
rule still stands. On March 3, federal defendants filed a motion to dismiss based on the Sixth Circuit’s decision that jurisdiction over the WOTUS rule
properly rests in that circuit. In their March 24 Response in Opposition, the states challenging the rule argue that Judge Erickson’s original decision
regarding jurisdiction was correct, and that the Sixth Circuit’s decision to the contrary does not require the District Court to change its prior, settled
decision. Court watchers expect a ruling from Judge Erickson this summer.
In February 2016, the Eleventh Circuit stayed State of Georgia v. United States Environmental Protection Agency, pending a decision by the Sixth
Circuit Court of Appeals on the consolidated litigation and issue of jurisdiction. After the Sixth Circuit’s decision finding jurisdiction, the state of
Georgia requested that the Eleventh Circuit renew its review of State of Georgia v. U.S. EPA, arguing that the Sixth Circuit’s decision granting
jurisdiction was based on Sixth Circuit precedent that conflicted with existing Eleventh Circuit precedent.
April 25, 2016:
The Eleventh Circuit
requested supplemental briefing on
several issues raised by the Sixth Circuit decisions regarding a nationwide stay of enforcement and original circuit court jurisdiction, and the
implication of those decisions on the proceedings before the Eleventh Circuit. The parties’ briefs are due later this May.
EPA Enforcement Initiative: A Preview
With challenges to the WOTUS rule ongoing, EPA announced a new national enforcement initiative under the Clean Water Act. Dubbed “Keeping Industrial
Pollutants Out of the Nation’s Waters (Fiscal Years 2017-19),” the initiative will focus EPA enforcement resources on certain industrial sectors − like
chemical and metal manufacturing, mining, and food processing − which EPA believes contribute to nutrient and metal pollution.
In our next article, we will explore this new enforcement initiative in depth and provide some tips for companies whose operations fall within its reach.