Sixth Circuit Court of Appeals Issues Nationwide Stay of Proceedings in the Clean Water Rule

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October 13, 2015

Various challenges to the Clean Water Rule, issued by the EPA and the Corps of Engineers on June 29, 2015, and effective August 28, 2015, have been consolidated by the Judicial Panel on Multi-District Litigation in the Sixth Circuit Court of Appeals.  On October 9 the Sixth Circuit issued a stay of enforcement of the Clean Water Rule pending the Sixth Circuit’s ruling on whether it has subject-matter jurisdiction over the challenge to the rule.  The Sixth Circuit will decide in the near future whether, under the language of the Clean Water Act, subject matter jurisdiction to challenge the Clean Water Rule lies at the district court level or at the court of appeals level.  (See my article “WOTUS Legal Challenges Update” .  The briefing process on that issue will be completed within a matter of weeks.
In the meantime, however, a panel of the Sixth Circuit by a two-to-one vote issued a stay of enforcement of the Clean Water Rule.  The Sixth Circuit determined that there is a substantial possibility that challengers to the rule may prevail for the following reasons:
(a)  The Clean Water Rule’s treatment of tributaries, “adjacent waters,” and waters having a “significant nexus” to “waters of the United States” may be at odds with the Supreme Court’s ruling in Rapanos v. United States, 547 U.S. 715 (2006), even assuming that Justice Kennedy’s opinion in that case represents the “best instruction permissible” on the jurisdiction of the Clean Water Act.  (See my article “Rapanos v. United States:  The Narrow View, The Broad View, and the Search for the Significant Nexus to Clean Water Act Jurisdiction”).
(b)  The distance limitations in the Clean Water Rule may have been adopted on inadequate notice in violation of the notice provisions in the rulemaking process; and
(c)  The distance limitations may lack specific scientific support and thus may be “arbitrary and capricious under the Administrative Procedure Act.
In issuing the stay, the Sixth Circuit voted to maintain the status quo nationally while the subject matter jurisdiction issue is pending.
Several points are of great interest in the ruling of the Sixth Circuit.  First, at this early stage in the proceedings there does not appear to be specific scientific support for the distance limitations that pertain to the case-specific determinations.  (See “Clean Water Rule:  Definition of ‘Waters of the United States’ Under the Clean Water Act”.)   Second, the Sixth Circuit expressed its frustration in gleaning a clear guiding principle from the splintered Rapanos decision.  In a footnote the court stated that “[t]here are real questions regarding the collective meaning of the [U.S. Supreme] Court’s fragmented opinions in Rapanos.”  Will Justice Kennedy’s “significant nexus” test ultimately be established as enduring rule?  Will an alternative test be established?  In its October 9 ruling the Sixth Circuit cited its prior decision in United States V. Cundiff, 555 F.3d 200 (Sixth Cir.; 2009), a post-Rapanos wetlands enforcement action that discussed the varying interpretations of Rapanos federal courts have made.
Finally, the Sixth Circuit decision recognizes the need for careful consideration of the Clean Water Rule:
“Given that the definitions of ‘navigable waters’ and ‘waters of the United States’ have been clouded by uncertainty, in spite of (or exacerbated by) a series of Supreme Court decisions over the last thirty years, we appreciate the need for the new Rule.  See Rapanos, . . .; Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Engineers . . .; United States v. Riverside Bayview Homes . . . (internal citations omitted).  In one sense, the clarification that the new Rule strives to achieve is long overdue.  We also accept that respondent agencies have conscientiously endeavored, within their technical expertise and experience, and based on reliable peer-review science, to promulgate new standards to protect water quality that conform to the Supreme Court’s guidance.  Yet, the sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being.
It should not be long before the Sixth Circuit decides whether it should decide the merits of the challenge to the Clean Water Rule in the first instance or whether it should remand the challenges to the district courts.

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