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Appeals court to hear WOTUS case

Consolidated cases in Cincinnati-based court of appeals could fast-track case to Supreme Court level.

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

The court, based in Cincinnati, Ohio, was the same court that created a nationwide injunction on the rule in 2015. That stay will continue as the court considers the case.

Because of uncertainty about whether the agencies’ adoption of the clean water rule is permissible, parties challenging the rule have filed petitions in both district courts and circuit courts across the country. Many of the petitions were transferred to the sixth circuit for consolidation.

The court document states that many of the petitioners and other parties now move to dismiss the very petitions they filed invoking this court’s jurisdiction, contending the appeals court lacks jurisdiction to review the WOTUS rule. However, the two judges commenting on the appeal said the court does actually have precedent to decide on the case and denied motions to dismiss the case.

California-based 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 relates to permitting would have to start in an appeals court. He expects there to be an en banc review – a session where a case is heard before all the judges of a court – to review prior precedence in this area and draw better lines between those where a dispute should originate in district court and those that should originate in an appeals court.

Scott Yager, National Cattlemen’s Beef Assn. (NCBA) environmental counsel, said the preferred court to hear the case was the Fifth District Court in Texas, where NCBA and the Public Lands Council filed their lawsuit challenging the rule and the agency’s rule-making procedures. Yager said starting in district courts allows the case to trickle up through the appellate courts and eventually end up at the Supreme Court. If it remains in place, the sixth circuit track will collect all of the cases and conduct them as one complete case.

Yager said there is reason for optimism as the original two judges who issued the nationwide injunction previewed on the merits of the case and outlined the serious procedural flaws in the rule-making process and questioned whether the final rule met the requirements called for by Justice Kennedy in previous court cases EPA used as a justification for the need of the rule.

Beard said the appeals court's decision to decide the merits of the challenge puts it on a faster track to the U.S. Supreme Court, where, because of the rule’s national importance, this case will almost certainly land. 

“With Justice Scalia’s untimely passing, the court’s 5-4 balance in favor of robust review of sweeping environmental rules — like the WOTUS rule — is no more, and in the near time, it is not clear that the votes exist on the High Court to make the right decision and set aside the rule,” Beard said.

However, if the appeals court confirms essentially what it identified in its injunction and overturns the rule, a 4-4 decision by the Supreme Court could actually create a situation where the lower court’s ruling would stand. If going off the comments made by the judges in this circuit up to this point, this could bring about the outcome desired by the agriculture industry.

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