On October 9, 2015, the US Court of Appeals for the Sixth Circuit stayed the implementation of the Clean Water Rule (the Final Rule) nationwide. The Final Rule defines “waters of the United States” (WOTUS), a threshold term that determines the Clean Water Act’s (CWA) scope and application. The Final Rule was issued on May 27, 2015, by the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps), with an effective date of August 28, 2015.

The Sixth Circuit found that the coalition of states challenging the Final Rule “demonstrated a substantial possibility of success on the merits of their claims” and that a stay would “temporarily silence the whirlwind of confusion that springs from the uncertainty about the requirements of the new Rule and whether they will survive legal testing.”[i]

Subject Matter Jurisdiction Still Under Consideration By the Sixth Circuit

The case already has a complex procedural history. Challenges to the Final Rule were filed in courts in a number of circuits. There is parallel litigation in the District Courts, and about a month ago, the US District Court for the District of North Dakota issued a preliminary injunction against implementation of the Final Rule, but applied the injunction to only the 13 states that were party to the case before the court. The US Judicial Panel on Multidistrict Litigation consolidated the petitions before the Circuit Courts for review and randomly selected the Sixth Circuit to hear the consolidated petitions.

Whether the Sixth Circuit has jurisdiction over the challenge to the Final Rule in the first instance remains an open question, and is likely to be hard fought.[ii] For purposes of the preliminary injunction, the majority concluded that the court has the authority “to make orders preserving the existing conditions” pending consideration of jurisdictional issues. The majority further noted the jurisdictional question would be “ripe for decision in a matter of weeks.”[iii] In a dissent, Judge Damon Keith argued that the Sixth Circuit could not act on the stay until it determines whether or not it has subject-matter jurisdiction.

Stay Preserves the Status Quo of Pre-Final Rule Regime

The Final Rule went into effect on August 28, 2015, and the Sixth Circuit first addressed the “threshold question” as to what the “status quo” was for the purpose of the motion for a stay. The court concluded that the “pre-Rule regime of federal-state collaboration that has been in place for several years, following the Supreme Court’s decision in Rapanos v. United States” represented the status quo.[iv]

The Sixth Circuit next found that the petitioners demonstrated a “substantial possibility of success on the merits” citing two primary reasons, both of which were also heavily relied on by the District Court in North Dakota when granting its preliminary injunction:

• The Final Rule may not conform with the standard in Rapanos v. United States, 547 U.S. 715 (2006); and
• EPA’s rulemaking process in adopting certain aspects of the Final Rule—i.e., its compliance with the Administrative Procedure Act (APA)—was “facially suspect.” [v]

As to the first rationale, petitioners argued that the Final Rule was at odds with the standard set forth in Justice Kennedy’s concurring opinion in Rapanos, which requires that there be a “significant nexus” between the water bodies sought to be regulated and navigable waters. The Sixth Circuit determined that even if Justice Kennedy’s opinion in Rapanos represented the best instructions for waters of the United States, “it is far from clear that the [Final Rule’s] distance limitations are harmonious with the instruction.” [vi]

With respect to the court’s second rationale, the Sixth Circuit found that “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.” These distance-based limitations are presumptions that the Final Rule contains that certain waters are or may be waters of the United States based on their distance from traditionally navigable waters—e.g., waters that are within 4,000 feet of a traditionally navigable water body are automatically subject to a case-specific “nexus” test to determine whether they are waters of the United States. The Court also found that the respondent agencies had not “identified specific scientific support substantiating the reasonableness of the bright-line standards they ultimately chose.” [vii] Thus, the Sixth Circuit found that “the rulemaking process by which the distance limitations were adopted is facially suspect.”

The court also found that “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.”[viii]

Looking Forward

The Sixth Circuit’s decision means that, for the time being, there is consistency in the CWA rules in place on a national basis—which was not true in the weeks following the decision by the US District Court for the District of North Dakota, applicable only to thirteen states.

But if the Sixth Circuit determines it lacks jurisdiction, challenges to the Final Rule will revert to the federal district courts, who to date have issued a series of inconsistent decisions on varying grounds.[ix] As there was with the numerous Circuit Court petitions, there is a motion pending in front of the U.S. Judicial Panel on Multidistrict Litigation to consolidate and transfer the “ten separate complaints . . . filed by 72 plaintiffs in eight federal district courts,” this time to the District Court for the District of Columbia.[x]

There is also the possibility that Congress will weigh in. A number of members of Congress have already introduced bills in both the Senate and the House directing the EPA to withdraw the Final Rule and some have used the Sixth Circuit’s decision as a call to action, noting the length of time it can take for a court to reach a decision on the merits.[xi]

However the procedural issues are resolved, it seems clear that the Final Rule will continue to be hard fought, and ultimately the Supreme Court is likely to be asked to review the rule. We will continue to monitor the litigation over the Final Rule and post updates here.

[i]           Ohio v. U.S. Army Corps of Eng’rs, Nos. 15-3799/3822/3853/3887, 2015 U.S. App. LEXIS 17642, at *20, 24 (6th Cir. Oct. 9, 2015).

[ii]               2015 U.S. App. LEXIS 17642, at *19.

[iii]              Id. at *20.

[iv]          2015 U.S. App. LEXIS 17642, at *19–20.

[v]               Id. at *20-22.

[vi]              Id. at *21.

[vii]             Id. at *22.

[viii]             2015 U.S. App. LEXIS 17642, at *24.

[ix]              See Order Limiting the Scope of Preliminary Injunction to the Plaintiffs, North Dakota v. U.S. EPA, No. 3:15-cv-59 (D.N.D. Sept. 4, 2015) (North Dakota District Court noting that while it had issued a preliminary injunction “Four courts have denied preliminary injunctions in cases on the issue before the court. Two courts denied preliminary injunctions because they found they lacked subject matter jurisdiction. The remaining two courts deferred their decision until the Judicial Panel for Multidistrict Litigation decides on consolidation of the district court cases.”).

[x]               United States, Motion for Transfer of Actions Pursuant to 28 U.S.C. § 1407 for Consolidation of Pretrial Proceedings, Case MDL No. 2662 (July 27, 2015).

[xi]          See e.g., Senate Inhofe, Inhofe Statement on Nationwide Stay of Flawed Waters of the United States Rule (Oct. 9, 2015), available at http://www.epw.senate.gov/public/index.cfm/press-releases-republican?ID=0DA14407-C350-44BE-B0E3-BFA4AA7B4FF7.