THE Sixth Circuit Court of Appeals announced that it will hear challenges to the Environmental Protection Agency/Army Corps of Engineers waters of the U.S. (WOTUS) rule, which expands the jurisdictional scope of the Clean Water Act.

The sixth circuit is the same court that created a nationwide injunction on the rule in 2015. That stay will continue as the court considers the case.

Uncertainty about whether the agencies' adoption of the water rule is permissible has led parties challenging the rule to file petitions in district and circuit courts across the country. Many of the petitions were transferred to the sixth circuit to be consolidated.

Now, the court document states that several petitioners and other parties are moving to dismiss the very petitions they filed invoking the appeals court's jurisdiction, contending that it lacks jurisdiction to review the WOTUS rule. The plaintiffs may petition to have the appeals court decision reheard.

However, the two judges commenting on the appeal said the court does have precedent to decide on the case and denied motions to dismiss it. They used a 2009 Clean Water Act pesticide case, which could restart old legal battles over agency permitting requirements, according to Steve Kopperud, executive vice president of Policy Directions Inc.

Attorney Paul Beard of Alston & Bird's Environment, Land Use & Natural Resources Practice Group said, "By the plain terms of the Clean Water Act, this litigation belongs in the district courts, not in the appeals courts."

He explained that because all Clean Water Act lawsuits relate to permitting, any rule that pertains to permitting has to start in an appeals court.

Beard expects there to be an en banc review — a session where a case is heard before all of the court's judges — of prior precedence in this area and to draw a better line between which disputes should originate in district court and which should originate in appeals court.

Scott Yager, National Cattlemen's Beef Assn. (NCBA) environmental counsel, said the preference was for the case to be heard by the Fifth District Court in Texas, where NCBA and the Public Lands Council filed a lawsuit challenging the WOTUS rule and EPA's rule-making procedures.

Yager said starting in district court allows the case to work up through the appellate courts and eventually reach the Supreme Court. If it stands as is, the sixth circuit will collect all of the cases and conduct them as one case.

Yager said there is reason for optimism as the original two judges who issued the nationwide injunction previewed the merits of the case, outlining the serious procedural flaws in the rule-making process and questioning whether the final rule met the requirements called for in previous court cases EPA used as justification for the need for the water rule.

Beard said the appeals court's decision to hear the challenges puts the case on a faster track to the Supreme Court, where, because of the rule's national importance, this case will almost certainly land.

With Supreme Court Justice Antonin Scalia's recent death, Beard said "the court's 5-4 balance in favor of robust review of sweeping environmental rules, like the WOTUS rule, is no more."

If the appeals court essentially confirms its injunction and overturns the WOTUS rule, however, a 4-4 decision by the Supreme Court could mean that the lower court's ruling would stand — the outcome the agriculture industry seeks.

Volume:88 Issue:03