The Sixth Circuit today stayed the effect of the Environmental Protection Agency’s new “Clean Water Rule” nationwide, while the Court of Appeals considers whether it has original jurisdiction to hear challenges to the regulation or whether those challenges should proceed first in the federal district courts.  Among other reasons, the court said staying the Rule would remove uncertainty and confusion by restoring a uniform definition of “waters of the United States” nationwide.  Before today, the prior regulatory definition of waters of the United States was in effect in 13 states where the federal district court for North Dakota had enjoined the new Clean Water Rule; the new Rule’s definition applied in the rest of the country.   

In granting the stay, the Sixth Circuit found that petitioners had a “substantial possibility” of succeeding on the merits of their challenge, for both substantive and procedural reasons.  Substantively, the court questioned whether the  Clean Water Rule’s provisions limiting jurisdiction over certain types of waters to those located within a specified distance from a navigable waterway are consistent with the Supreme Court’s decision in Rapanos v. United States, 547 U.S. 715 (2006).  Procedurally, the court found the rulemaking process by which the distance limitations were established was “facially suspect” because respondents have not shown those provisions were a “logical outgrowth” of the proposed regulations or that the public had “reasonably specific notice” the distance limitations were among the range of alternatives being considered.

As one member of the three-judge panel noted in dissent, the majority’s ruling is unusual in that the court enjoined implementation of the Clean Water Rule while it is still considering whether it even has jurisdiction to hear the challenges to the Rule.  In fact, petitioners have moved to dismiss their own petitions for lack of subject matter jurisdiction while also seeking a stay.  The majority’s statement that there is “no compelling showing that any of the petitioners will suffer immediate irreparable harm” in the absence of a stay is also in some tension with the Supreme Court’s decision in Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008), where the Court held (in the context of a NEPA challenge) that the party seeking a preliminary injunction must show a likelihood—not just a possibility—of irreparable harm absent an injunction.

The court said that briefing on the jurisdictional question will be complete, and the question ready for decision, “in a matter of weeks.”