Sixth Circuit Will Not Rehear Venue Question in Clean Water Act Rule Dispute

On April 21, 2016 the United States Court of Appeals for the Sixth Circuit denied several petitions for rehearing en banc a Sixth Circuit panel decision that looked at which courts (federal district court or federal courts of appeal) have original jurisdiction to hear challenges to the EPA’s Clean Water Rule.  This recent ruling leaves in place the Sixth Circuit panel ruling holding that jurisdiction lies at the appeals court level.

EPA’s Clean Water Rule has already sparked a long and complicated history of litigation.  As a refresher, here are some of the highlights:

• June 29, 2015: EPA publishes final “Clean Water Rule” setting out a new definition of “Waters of the United States.” 80 Fed. Reg. 37054 (Jun. 29, 2015).  Soon after, multiple petitions are filed challenging the rule in federal district courts and in federal circuit courts.
• July 28, 2015: The Judicial Panel on Multidistrict Litigation consolidates the pending circuit court actions in the Sixth Circuit Court of Appeals.
• August 27, 2015: The federal District Court for the District of North Dakota concludes that jurisdiction is proper in the district courts and enjoins enforcement of the Clean Water Rule in the 13 States that are parties to the lawsuit in front of the court.
• October 9, 2015: The Sixth Circuit Court of Appeals issues a nationwide stay of the Clean Water Rule. In Re: Environmental Protection Agency and Dep’t of Defense Final Rule “Clean Water Rule”, Nos. 15-3799/3822/3853/3877, 803 F.3d 804 (6th Cir. 2015).
• February 22, 2016: A three-judge panel of the Sixth Circuit Court of Appeals holds that the circuit courts have jurisdiction to hear the challenges to the Clean Water Rule.
• March 3^rd, 2016: The Federal defendants file a Motion to Dismiss the North Dakota District Court case in light of the Sixth Circuit’s decision from February 22^nd.
• March -April 2016: Several Parties file petitions to the Sixth Circuit for rehearing en banc the panel decision on jurisdiction from February 22^nd.
• April 21, 2016: The Sixth Circuit denies the en banc petitions, leaving the February 22^nd decision in place.

We will have to wait and see if the States and industry groups challenging jurisdiction in the Sixth Circuit will appeal to the U.S. Supreme Court.  Meanwhile, there are still parallel proceedings questioning jurisdiction at the North Dakota district court and the Eleventh Circuit (on appeal from the District Court for the Southern District of Georgia).  The Sixth Circuit’s denial of rehearing makes it more likely that the Clean Water Rule will ultimately be reviewed in the circuit courts, specifically, the Sixth Circuit.  However, the order has no immediate substantive effect on the regulated community because it leaves in place the nationwide stay of the Clean Water Rule.