A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit has ruled that a challenge to the EPA’s new Clean Water Regulation will be held by the federal appeals court rather than a district court. It was a split decision (1-1-1) that denied motions to dismiss for a lack of jurisdiction, and holding the Sixth Circuit has jurisdiction under Sec. 509 (b)(1) to decide the challenges to the WOTUS Rule. The government had opposed the motions.
While 2 of the judges disagreed that Section 509 (b)(1) required the direct circuit review, one of those judges indicated they felt they were bound by a previous decision by the Sixth Circuit (National Cotton Council case) to find that the Sixth Circuit has jurisdiction here.
Importantly, even though the future of the case remains murky, the nationwide stay of the Rule remains in effect. Because of the split decision, it is likely that a request will be made by some of the petitioners to seek a rehearing en banc (by the full Sixth Circuit, which is currently 23 judges) to review the ruling. En banc review on a jurisdictional order is rarely granted, but if it were, it could take months to resolve.
The decision impacts the over thirty challenges to the clean water rule that had been consolidated earlier by the court and the additional challenges that had been waiting before other courts throughout the country, including the Eleventh Circuit. The Eleventh Circuit is not bound by the Sixth Circuits decision in the National Cotton case, so a conflicting decision is possible, and would potentially set the jurisdiction question up to the Supreme Court for review.
The Sixth Circuit’s ruling is attached.
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