The United States Court of Appeals for the Sixth Circuit will hear oral arguments tomorrow, December 8, 2015, on the limited issue of whether jurisdiction to review EPA’s Clean Water Rule (“the Rule”) lies exclusively with the courts of appeals, pursuant to Section 509(b)(1) of the Clean Water Act (“CWA”), 33 U.S.C. §1369(b)(1), or whether the district courts have jurisdiction to review the rule pursuant to the Administrative Procedure Act (“APA”).

Adoption of rule 

The Rule, which was first proposed on April 21, 2014, was issued as a final rule on June 29, 2015, effective August 28, 2015. The Rule purports to clarify the scope of “waters of the United States” following confusion as a result of pronouncements by the Supreme Court on the topic in United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) (Riverside), Rapanos v. United States, 547 U.S. 715 (2006) (Rapanos), and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC).

Curious Procedural Background

The Clean Water Act is unique among the significant national environmental acts in that it is the only one that doesn’t establish a clear and exclusive path for judicial review the way that other acts, such as the Clean Air Act, Resource Conservation Recovery Act, or Toxic Substances Control Act do.   As a result, thirty-one states as well as various trade groups and civic organizations have sued to stop the rule in various federal district courts.

The United States District Court for the Southern District of Georgia denied a request to issue a preliminary injunction filed there because it concluded the appellate court was the proper venue for a lawsuit challenging the Rule.^[1] Similarly, the District Court for the Northern District of West Virginia dismissed a case filed there for lack of jurisdiction.^[2] District Courts for the Northern District of Oklahoma^[3], the Southern District of Ohio^[4] and the Southern District of Texas^[5] have decided to play it safe and have stayed actions filed there, pending resolution of the jurisdiction issue. The District of North Dakota, on the other hand, granted a preliminary injunction staying implementation of the Rule one day before it was to go into effect, concluding that it had jurisdiction to review the rule. That injunction, however, was limited to the thirteen states involved in the North Dakota Litigation.^[6]

Some unusual legal maneuvering has ensued. Eighteen states that brought challenges in the district courts (“the States”) also filed protective appeals in four different circuit courts of appeals, despite their belief that the proper venue was with the district court. Those appeals were consolidated before the Sixth Circuit.   The States then filed motions to dismiss their own appeals based on their argument that the appellate court lacks jurisdiction. At the same time, those states also asked the court of appeals, which they claim doesn’t have jurisdiction, to nevertheless stay the rule pending resolution of the challenges. Finally, the court, which acknowledges that it may not have jurisdiction, issued a nationwide stay.

Arguments of the States 

The crux of the States’ appeals is that – thru the Rule, EPA seeks to broadly expand its power to regulate, while narrowly restricting the judicial review available for challenging that power.   The States argue that EPA’s final Rule was adopted in violation of the APA. The rule, they argue, was not a “logical outgrowth” of the proposal, but rather, expanded significantly the scope of “waters of the United States” and adopted new requirements, such as distance-based regulations, that are arbitrary and not supported by science. The states further claim that the Rule violates the CWA, as articulated by the Supreme Court in Rapanos, by including waters that do not have a significant nexus to navigable-in-fact waters and in other respects. Finally, the States argue that the rule violates the constitution and impairs states’ sovereign rights to manage and protect intrastate water.

To the extent the court determines it has jurisdiction, the States request that the court vacate and set aside the rule and remand the matter to EPA for a new rulemaking.

US EPA’s Position 

Starting with the Federal Register notice announcing the rule, EPA has maintained that a challenge to the Rule may fall within the jurisdiction of the appellate court under 33 U.S.C. §1369(b)(1) of the CWA. That statute vests jurisdiction with the appellate court to review the Administrator’s action in seven specific situations. At issue in this case are the provisions in two sections of 1369(b)(1) – Sections (E) and (F), which authorize review “in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title,” or “in issuing or denying any permit under section 1342 of this title.”

First, EPA claims 33 U.S.C. §1369(b)(1)(E) authorizes review because EPA’s rule is an “other limitation under section [301]” of the Clean Water Act. In other words, by defining what waters are “waters of the United States,” the rule operates to limit what permits can be issued and thus what can be discharged into those waters. Second, EPA claims that the rule can be reviewed in the Court of Appeals pursuant to §1369(b)(1)(F), which applies to EPA actions “in issuing or denying any permit” under Section 402 of the Act. By identifying where such permits are required and where they are not, the rule thus “directly governs the issuance” of permits, the agency claims. EPA father argues that the position advocated by the states is inefficient and results in delays and the risk of inconsistent rulings. Because the Clean Water Rule is a nationally applicable regulation, EPA argues that it must be considered in every Section 402 permitting decision and that “judicial review in the district courts would result in facial challenges to the same rule being reviewed under the same standard of review, in light of the same administrative record, in numerous district courts and then numerous courts of appeals.”

As support for its position, EPA points out that petitions for review under 33 U.S.C. §1369 of the CWA must generally be brought within 120 days of the action being challenged, whereas a more general APA challenge can be brought at any time within six years of the challenged action. Thus, the validity of agency action remains uncertain for a longer period of time if the APA review process, which allows challenges to be brought in the district courts, is followed.

The States argue that the Rule is not an “effluent limitation or other limitation,” nor was it created under any of the statutory sections cited in §1369(b)(1)(E). Similarly, the States argue that §1369(b)(1)(F) is not relevant because attempting to define “waters of the United States” cannot be viewed as “issuing or denying a permit.” The States further argue that rules of statutory construction support their position. For instance, accepting EPA’s interpretation of the scope of §1369(b) renders other provisions of that statute superfluous.

The United States Court of Appeals for the Eleventh Circuit is also set to hear oral arguments early next year on the jurisdiction issue in an appeal of the Georgia v. McCarty ruling, which held that the district court did not have jurisdiction to hear a challenge of the Rule. That case may set the issue up for Supreme Court review if the Sixth and Eleventh Circuits ultimately disagree.

Arguments are to be heard in the Sixth Circuit by Senior Judge Damon J. Keith, Judge David W. McKeague, and Judge Richard Allen Griffin. The Court has allotted 20 minutes to be shared by the movants, and 20 minutes to be shared by the parties opposing dismissal.

_{[1] Georgia v. McCarthy, No. 2:15-cv-00079 (S.D. Ga. Aug. 27, 2015), on appeal to the Eleventh Circuit, No. 15-14035-EE.}

_{[2] Murray Energy Corp. v. EPA, 2015 WL 5062506, at *3-6 (N.D. W. Va. Aug. 2, 2015).}

_{[3] Oklahoma ex rel. Pruitt v. EPA,4:15-cv-0381 (N.D. Okla. July 31, 2015).}

_{[4] Ohio v. U.S. Army Corps. Of Engineers, 2:15-cf-2467 (S.D. Ohio, Sept. 1, 2015).}

_{[5] Texas v. EPA, 3:15-cv-0162 (S.D. Tex. Aug. 14, 2015).}

_{[6] North Dakota v. U.S. E.P.A., No. 3:15-cv-59, 2015 WL 5060744 (D.N.D. Aug. 27, 2015) (staying operation of the Rule in North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming, and New Mexico).}