Sixth Circuit Stays the Clean Water Rule
By Hali Kerr, Staff Contributor
What is a stream? What streams, lakes, rivers, and wetlands warrant protection by the Federal Government? And what is a “navigable” waterway?
These were some of the questions- paraphrased, of course- that the U.S. Environmental Protection Agency (EPA) addressed in its recent Clean Water Rule.
The Clean Water Rule (Rule) clarifies, and attempts to resolve, years of different interpretations and confusing rulings by the Supreme Court on what waterways are under the jurisdiction of the Federal Government and therefore subject to the EPA and Army Corps of Engineers (Army Corps) regulations under the Clean Water Act. The Rule protects tributaries that impact the health of downstream waters. The Rule also protects adjacent waters and water systems, like the Carolina and Delmarva bays, when they impact the health of downstream waters. Finally, the Rule limits the need for case-specific analyses of waters by creating categories of similar waters that are more clearly protected or not protected.
Years of development, hundreds of stakeholder meetings, and over one million comments were involved in the process of making the Rule. The EPA and Army Corps also relied on a science report summarizing findings from over 1,200 peer-reviewed and published scientific studies on water systems. The agencies relied on their own expertise as well as the views of many stakeholders to create an informed, workable Rule that would clarify their jurisdiction.
The Rule was quickly challenged. A question remained, however, about where the Rule could even be challenged. Two District Courts held that the Courts of Appeals had exclusive jurisdiction based on the Rule’s inclusion under 33 U.S.C. §1369(b)(1), which restricts review to the Circuit Courts of Appeals, as a “limitation” or an underlying permit regulation. Another District Court, in North Dakota, held that it did have jurisdiction, holding that the Rule was neither a limitation nor permit under §1369, and therefore original jurisdiction did not lie with the Courts of Appeals. The District of North Dakota granted the Plaintiff’s motion for a preliminary injunction, blocking implementation of the Rule in 13 states.
Recently, a Circuit Court of Appeals finally spoke on the issue. Two judges on the Sixth Circuit stayed the implementation of the Rule nationwide. They made this sweeping decision after stating themselves that they may not have subject matter jurisdiction to hear the case at all. This jurisdictional question is still in the process of briefing before the Sixth Circuit, and will be, “ripe for decision in a few weeks,” but in the meantime the court held it had the authority to stay the Rule. The dissenting judge argued that the court should not grant the stay because the question of jurisdiction, a threshold matter, had not been decided, and “[i]f [the court] lack[s] jurisdiction to review the Rule, [it] lack[s] jurisdiction to grant a stay.” The dissent was correct not only because (1) the Sixth Circuit’s authority to grant a stay before deciding the matter of jurisdiction is questionable to begin with, but also because doing so (2) violates the fundamental principle of separation of powers that underlies our Federal Government.
(1) The Sixth Circuit’s Authority (or lack thereof) to Grant the Stay of the Clean Water Rule
The Sixth Circuit went through two analyses before evaluating the merits of the stay motion. In the first, the court decided that the “status quo” it would preserve if it granted the stay would be the pre-Clean Water Rule definition of “waters of the United States” because of the Rule’s “pervasive nationwide impact . . . on state and federal regulation of the nation’s waters” and because of the “still open question whether . . . this litigation is properly pursued in this court or the district courts.” The court does not cite any other authority for its decision, but merely cites Rapanos v. United States to indicate which definition it refers to for the status quo.
Second, the Sixth Circuit held that it did indeed have the authority to stay the implementation of the Rule pending the determination of its own jurisdiction to review the Rule. This is the point that the dissent disputes. The majority based its conclusion on a Supreme Court case allowing a stay when “the subject matter of the suit, as well as the parties, was properly before the court.” The propriety of the subject matter of the suit and parties before the court were uncertain in this case.
Meanwhile, the dissent cited a D.C. Circuit case that specifically states that when exclusive review is available in one court, action by a different court is not valid. While the dissent may be citing an opinion from a lower court, this premise makes logical sense. If a court does not have jurisdiction to hear the case, how can it have jurisdiction to temporarily decide the outcome of the case? How can it decide that actions across the country that have taken the new Rule, based on years of agency expertise and outside input, into consideration will suddenly be halted or incorrect? The jurisdictional issue for the Rule is hotly contested, and without surety that the court can even hear the case, its ability to stay the Rule’s implementation nationwide seems unsuitable.
(2) Judicial Supremacy at Work
The larger issue is that the court, in deciding the merits of the motion to stay the Rule’s implementation, relied largely on the importance and breadth of the Rule in determining that the stay was appropriate. Of the four factors it analyzes in granting the stay, the first and last persuade the court to grant the stay (while the middle two balance each other out). The court decided that the petitioners had a substantial possibility of success on the merits because the Rule may be inconsistent with the Rapanos decision and with the rulemaking process under the APA. Because “respondents [did] not persuasively rebut either of petitioner’s showings,” petitioners met their burden of showing a substantial likelihood of success. The court was further persuaded to grant the stay because they believed that doing so was in the public interest.
The public interest discussion in the opinion gave the judges the chance to speculate and decide that the Rule should be stayed despite their contested jurisdiction to hear the case and despite years of work by two expert Federal agencies and stakeholders. The court discussed the “burden – potentially visited nationwide on governmental bodies, state and federal, as well as private parties . . . implicated by the Rule’s effective redrawing of jurisdictional lines over certain of the nation’s waters.” This “redrawing,” however, was extremely informed and deliberate. In the same paragraph, the court acknowledges that “the clarification the Rule strives to achieve is long overdue . . . respondent agencies have conscientiously endeavored, within their technical expertise and experience, and based on reliable peer-reviewed science, to promulgate new standards to protect water quality.” Despite this acknowledgement by the court of the reasons for deference to the agency, they go on to say the “sheer ripple effects” mandate the stay.
The court validated its stay, saying it “honors the policy of cooperative federalism” and “restore[s] uniformity,” while it really substituted its own judgment for that of two agencies and millions of stakeholders. Given the importance of the Rule, countless hours and expertise that went into its creation, and remaining question of jurisdiction, the Sixth Circuit should not have stayed the Clean Water Rule’s implementation. Doing so merely substituted the court’s judgment for the expert agency’s.
 80 FR 37054 (June 29, 2015).
 See U.S. EPA, What the Clean Water Rule Does, http://www2.epa.gov/cleanwaterrule/what-clean-water-rule-does (last updated May 27, 2015).
 See Murray Energy Corp. v. U.S. EPA, 2015 WL 5062506 at *6 (N.D. W. Va. August 26, 2015); Georgia v. McCarthy, 2015 WL 5092568 at *1 (S.D. Ga. August 27, 2015).
 North Dakota v. EPA, 2015 WL 5060744 at *1-2 (D. N.D. August 27, 2015).
 Id. at *8.
 In re EPA, 2015 WL 5893814 *4 (6th Cir. Oct. 9, 2015).
 Id. at *2.
 Id. *1-2.
 Id. at *4 (Keith, J., dissenting) (citing Telecomm. Research & Action Ctr. V. FCC, 750 F.2d 70, 77-78 (D.C.Cir. 1984)).
 Id. at *2.
 Id. (citing Rapanos v. United States, 547 U.S. 715 (2006)).
 United States v. United Mine Workers of America, 330 U.S. 258, 291 (1947)).
 See In re EPA, 2015 WL 5893814 at *4 (citing Telecomm. Research & Action, 750 F.2d at 77-78).
 Id. at *3-4.
 Id. at *3.