EPA’s Water Rule Blocked Nationwide

October 9, 2015

On Friday October 9, 2015, the United States Court of Appeals for the Sixth Circuit issued a nationwide stay of the new Clean Water Rule.  This order restores the definition of Waters of the United States to what it was prior to the August 28 effective date of the Rule. In a 2-1 decision in State of Ohio, et al. v. U.S. Army Corps of Eng’rs. et al., No. 15-3751, the Sixth Circuit, without ruling on whether it had jurisdiction to hear the case, found that petitioners, a group of eighteen states, had demonstrated a substantial possibility of success in demonstrating that the Rule is an inappropriate expansion of federal agency authority.

The Court, which is hearing four consolidated actions filed in Federal Appeals courts, reasoned that restoring the status quo, as it existed before the August 28 effective date of the Rule, was appropriate given the “whirlwind of confusion” caused by the Rule and disparate orders issued by several District Courts including a preliminary injunction issued by the District of North Dakota on August 27 enjoining the rule in 13 states.  The Court also found that petitioners demonstrated a substantial possibility of success on the merits in arguing that: (1) the Rule’s treatment of tributaries, adjacent waters, and waters having significant nexus to navigable waters is at odds with the Supreme Court’s ruling in Rapanos; and (2) changes made in the final Rule violate procedural rule-making requirements under the Administrative Procedures Act.

Regarding the question of where appropriate initial jurisdiction lies to hear these challenges — the threshold question facing all of the courts examining this issue — the Court only noted that both sides have colorable arguments.  Most industry and aligned state petitioners, including petitioners in State of Ohio, argue that District Courts should hear the initial challenges while the Federal Government and intervening environmental groups and aligned states contend jurisdiction lies with the Appeals Courts.  The Sixth Circuit notes that briefing on the jurisdictional question will be completed and ripe for decision in a matter of weeks.

It is possible that this stay will be short-lived, because, as pointed out in the dissenting opinion to this order, if the Sixth Circuit finds it does not have jurisdiction to hear the case, then it also lacks jurisdiction to grant a stay.

We will continue to track developments in these series of challenges.