If you have ignored the litigation contesting the Obama administration’s efforts to define “waters of the United States” for purposes of the Clean Water Act, you are in luck: mostly what you have missed is a fight about where to have the fight.
More than two dozen cases have been filed challenging the Clean Water Rule, issued by the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers on June 29, 2015. 80 Fed. Reg. 37,054. For the moment, you only need to pay close attention, at most, to three of them. Bonus!
The rule is a shameless appeal to Justice Kennedy, widely expected to be the deciding vote when a rule challenge inevitably reaches the Supreme Court. Justice Kennedy wrote the concurring opinion in the last Supreme Court case to address Clean Water Act jurisdiction, Rapanos v. United States, 547 U.S. 715 (2006). See C. Thomas, Defining “Waters of the United States”: A Mean-Spirited Guide, Natural Res. & Env’t, Summer 2015, at 32, available at http://www.squirepattonboggs.com/~/media/files/insights/publications/2015/08/defining-waters-of-the-united-states/nre_v30n01_feat07_thomas.pdf. His opinion broadly concluded that the Clean Water Act regulates anything with a “significant nexus” to waters that “are or were navigable in fact or that could reasonably be so made.” Given the breadth and ambiguity of the term “significant nexus,” EPA and the Corps squeeze it in 438 times in the rule and its supporting material.
The “significant nexus” test, alas, is not uniformly loved. Because of ambiguity about the proper forum for challenges to the rule, opponents have sought review in numerous courts. At the appellate level, 16 petitions for review were filed in eight courts of appeal. The matters were consolidated pursuant to 28 U.S.C. § 2112 in a single action within the United States Court of Appeals for the Sixth Circuit. Those consolidated cases are commonly referred to as either In Re EPA and Department of Defense Final Rule or State of Ohio v. U.S. Army Corps of Engineers. Nos. 15-3751 (MCP No. 135).
The petitioners include industry and environmental groups and 18 states. Petitioners would prefer to have the merits of their arguments heard first at the district court level. Accordingly, they moved to dismiss their own petitions, arguing that the final rule is not subject to immediate review by the courts of appeal.
Since dismissal of the Sixth Circuit proceeding would leave the United States to litigate at least 16 cases in 13 district courts, respondents would obviously prefer to stay put. The jurisdictional issue was argued before the Sixth Circuit on December 8, 2015. Those desperate for entertainment can find docket numbers for all of the appellate and district court proceedings in footnotes 3 and 4 of the government’s brief, Docket No. 58.
In a burst of counter-intuitive efficiency, prior to even determining itself whether it has jurisdiction over the case, on October 9, 2015, the Sixth Circuit panel granted a motion to enjoin implementation of the rule, nationwide. That is, although the panel was not sure it had the power to decide the case, it nevertheless decided it had the authority to enjoin EPA and the Corps from implementing the rule. You are not alone if that reminds you of Alice’s Red Queen insisting on proclaiming “sentence first, verdict afterward.” L. Carroll, Alice's Adventures in Wonderland & Through the Looking-Glass (Penguin 2000).
On February 22, 2016, the panel decided that it does have jurisdiction. But it did so via a 2–1 ruling, with the two judges concluding that the court does have jurisdiction coming up with completely different grounds for so doing. Needless to say, a petition for rehearing en banc—which remains pending—immediately followed. In Re: Environmental Protection Agency and Department of Defense Final Rule, Nos. 15-3751 (6th Cir.) (Nos. 85, 86).
One other case at the appellate level bears mention, State of Georgia v. McCarthy, No. 15-14035 (11th Cir.). This is an appeal by 11 states of a district court ruling denying their request to enjoin implementation of the rule. The district court found that the courts of appeal have exclusive jurisdiction over the states’ challenges, on the grounds that the Clean Water Rule is, indeed, the sort of “effluent or other limitation” that must be challenged via petition for review. Oral argument took place on the jurisdictional issue on February 23, 2016.
That brings us to the district courts. The United States had asked the U.S. Judicial Panel on Multidistrict Litigation to consolidate all of the district court cases—back when there were only a measly nine of them. The Judicial Panel declined, properly, ruling that 28 U.S.C. § 1407 supports consolidation of cases that involve common issues of fact, but not merely common issues of law. In re: Clean Water Rule: Definition of “Waters of the United States,” MDL No. 2663, Doc. #163 (J.P.M.L. Oct. 13, 2015).
Of the 16 district court cases, the most notable one has been North Dakota v. EPA, No. 3:15-cv-00059 (D.N.D.). The District of North Dakota has already analyzed the constitutional merits of the rule and found them wanting. On August 27, 2015, the court granted a preliminary injunction against implementation of the rule. The court found the rule likely exceeds the agencies’ congressional mandate to regulate “waters of the U.S.” and also likely violates the Administrative Procedure Act. The judge later clarified that the injunction applied only in the 13 states party to the case (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico (through state agencies), North Dakota, South Dakota, and Wyoming).
So where does this leave us, other than dazed and confused? The Sixth Circuit’s nationwide injunction against enforcing the new rule will remain in place for now. That could change, however, if the Sixth Circuit accepts the petition for rehearing en banc and decides it does not have jurisdiction after all. In that event, the Eleventh Circuit conceivably could step in. If not, the consolidated actions will again be fragmented and you will need to start paying attention to the other district court cases, desperate for entertainment or not. And of course, subject to further developments in lower court cases, enforcing the rule would be permissible except in the 13 states litigating the North Dakota action.
Ultimately, whether the new Rule exceeds either Congress’ grant of statutory authority in the Clean Water Act or Congress’ constitutional power to regulate under the Commerce Clause is likely to be decided by the U.S. Supreme Court. More particularly, the issue is likely to be decided–or not decided, in light of the death of Justice Scalia–by the single vote of Justice Kennedy. There is a reason why the rule and its supporting material used Kennedy’s phrase “significant nexus” 438 times.