The Court of Appeals for the Sixth Circuit (based in Cincinnati, Ohio) ruled on Monday, February 22, 2016, that the appellate court HAS the jurisdiction to review the multitude of consolidated cases brought against the EPA disputing The Clean Water Rule.
The fractured 1:1:1 decision by the 3-judge panel looked at case precedence (National Cotton Council v. EPA) and attempted
This process appears to be a dance between the judicial and legislative branches of our government to ascertain what our nation’s laws should be and how they should be interpreted. And, as we saw with Senate Joint Resolution 22 this year, the executive branch jumps in with their say in the form of a VETO and the occasionally contentious Executive Orders.
Since the decision handed down was divided, a number of agriculture and industry groups are asking that all 23 judges of the Sixth Circuit review the jurisdictional question (a process called an en banc review)**. The special interest groups are stressing that this decision has such important implications to the nation’s water regulations that a larger (perhaps more harmonious) judicial review of the question would better serve the interests involved.
One observation I wanted to note here made by Timothy Cama of The Hill – “If numerous district courts were allowed to take up the lawsuits [as some of the parties prefer], they could issue mismatching rulings, which would expedite potential appeal to the Supreme Court.” The importance of the recent death of Justice Antonin Scalia (considered a conservative judge) is heightened due to the possible influence on the outcome of any current or upcoming Supreme Court cases related to the Clean Water Rule.
Numerous cases in other appellate courts and district courts had been postponed until the Sixth Circuit decided the question of venue, so this decision on February 22nd carries quite a bit of weight.
For now, the decision means that the nationwide stay of the Clean Water Rule remains in effect and the consolidated case* in the Sixth Circuit that challenges the Clean Water Rule will proceed. At this time, it does not appear that the court has set its schedule for hearing the case.
*Just as a reminder, the consolidated case in the Sixth Circuit pulls together Clean Water Rule challenges from the Second, Fifth, Sixth, Eighth, Ninth, Tenth, Eleventh, and District of Columbia Circuits (8 of the 13 U.S. Court of Appeals).
**UPDATE: The U.S. court has not responded to the en banc review request yet.
WOTUS Court Conflict by Todd Neely, a DTN.com reporter, 3/1/16
Court to hear case against Obama’s water rule by Timothy Cama, The Hill.com reporter, 2/22/16
Sixth Circuit Agrees to Hear Challenge to Clean Water Act by Justin Jennewine, one of Squire Patton Boggs' Sixth Circuit Appellate bloggers, 2/23/16
Sixth Circuit Court of Appeals will hear WOTUS Rule by Peggy Kirk Hall, Ohio State University assistant professor, 2/26/16