Clean Water Act’s WOTUS Rule, Still on Trial: May 2016 Updates

May 19, 2016

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.

Sixth Circuit

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.

Eleventh Circuit

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.