Following the Sixth Circuit’s splintered 1-1-1 ruling that it has jurisdiction to hear challenges to the Clean Water Rule, the states and related petitioners who opposed jurisdiction in the circuit court of appeals filed a petition for rehearing en banc, meaning by the entire Sixth Circuit.

Last week, US EPA and the Army Corps of Engineers (the Agencies) filed a response to that petition urging the court not to grant en banc review. According to the Agencies, the petitioners failed to meet the criteria for en banc proceedings as set forth in the Sixth Circuit’s Internal Operating Procedure 35, which provides additional guidance on the Federal Appellate Rules applicable to en banc proceedings. The I.O.P. 35(a) states, in relevant part, that “[a] petition for rehearing en banc is an extraordinary procedure intended to bring to the attention of the entire court a precedent-setting error of exceptional public importance or an opinion that directly conflicts with Supreme Court or Sixth Circuit precedent….”

The Agencies dispute the petitioners’ characterization of the ruling as conflicting with Supreme Court precedent, arguing that the Supreme Court has been consistent in its interpretation of the judicial review provisions under the Clean Water Act sections at issue. Moreover, they claim that the panel’s 1-1-1 decision does not contain a “precedent setting error of exceptional public importance.”   Noting that the court’s ruling did not reach the merits of the Clean Water Rule challenge and was only addressing the question of which court should hear the challenge, the Agencies chided the petitioners for “conflating” the importance of the Clean Water Rule with the “relevant question of whether the panel decision itself constitutes a precedent-setting error of exceptional public importance,” which the Agencies maintain it does not.

The Agencies used their response to reiterate their argument that review of the challenge to the Clean Water Rule by the circuit courts is more efficient than multiple reviews by different district courts.

“Due to the nationwide importance of the matter,” the Court shortened the time for the Agencies to respond to the states’ petition for en banc review. Presumably, this means that the Court will also rule on the petition for en banc review in an expedited manner.