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Sixth Circuit Decides It Can Hear Clean Water Rule Challenges

The EPA and the Army Corps of Engineers (“Agencies”) narrowly prevailed in their arguments that jurisdiction to review the Clean Water Rule (“Rule”) lies with the Circuit Court of Appeals and not the District Courts. In a 2-1 decision issued on Monday, the Sixth Circuit ruled that while the plain language of the Clean Water Act (“Act”) may not make it clear, precedent required that they find that the court has jurisdiction to review the consolidated challenges to the Act.


The Rule, issued on June 29, 2015, purports to clarify the scope of “waters of the United States” following confusion as a result of pronouncements by the Supreme Court on the topic in United States v. Riverside Bayview Homes, Rapanos v. United States, and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers. Thirty-one states as well as various trade groups and civic organizations (“Petitioners”) have sued to stop the rule in various federal district courts.   Because the Clean Water Act doesn’t establish a clear and exclusive path for judicial review the way that other federal environmental acts do, there was uncertainty over whether the district courts were the proper courts to hear the challenges. As a result, many of the Petitioners also filed protective appeals with circuit courts of appeals, which were consolidated before the Sixth Circuit.   The Petitioners then filed motions to dismiss their own appeals based on their argument that the appellate court lacks jurisdiction.

Clean Water Act Section 509(b) – Review by Circuit Courts of Appeal

Section 509(b) of the Clean Water Act identifies seven kinds of action by the EPA Administrator that are reviewable directly by the U.S. Circuit Courts of Appeals. The Agencies claim that the Circuit Courts have jurisdiction to hear the Rule pursuant to §509(b)(1)(E), which provides for review of agency action “approving or promulgating any effluent limitations or other limitation under section 1311, 1312, 1316 or 1345,” and §509(b)(1)(F), which provides for review of agency action “in issuing or denying any permit under section 1342….” The Agencies argued that the the Rule is an “other limitation” under subsection (E) and, alternatively, that the Rule’s impact on permitting under section 1342 causes it to fall under subsection (F). The Petitioners argued that the plain language of those provisions did not extend jurisdiction to review the Rule to the Circuit Courts and that the District Courts have jurisdiction to hear the challenges.

Sixth Circuit Issues Decision

The Sixth Circuit’s basis for finding that it has jurisdiction to hear the challenges to the rule was far from unanimous. One judge found the court has no authority to hear the case under either subsection (E) or (F), one judge found authority under both subsections and the third judge begrudgingly found authority under one, but not the other, section, but only because he was bound by precedent and not because he agreed with it.

The Opinion of the Court

Judge McKeague delivered the opinion, and Judge Griffin joined in the result only. While Judge McKeague noted that the Agencies’ argument that the Clean Water Rule is an “other limitation” under subsection (E) was not compelling on its face, he ultimately felt bound by the Supreme Court’s holding in E. I. du Pont de Nemours Co. v. Train, where the Court construed the authority in subsection (E) broadly, “to encompass review of more agency actions than a literal reading of the provision would suggest.” Slip Op. p. 7. Specifically, E.I. du Pont held that a strict, literal construction of §509(b)(1) that would provide direct circuit court review of individual actions issuing or denying permits, but that would disallow review of the basic regulations governing those individual actions would be a “truly perverse situation” that couldn’t have been intended.

“Viewing the Clean Water Rule through the lens created in E.I. du Pont reveals a regulation whose practical effect will be to indirectly produce various limitations on point-source operators and permit issuing authorities. Accordingly, although the Rule does not itself impose any limitation, its effect, in the regulatory scheme established under the Clean Water Act, is such as to render the Rule, per the teaching of E.I. du Pont and its progeny, subject to direct circuit court review under [§509(b)(1)(E).]” Slip Op. at 1.

As for the applicability of subsection (F), Judge McKeague found that the petitioners’ arguments that subsection (F) was not applicable because the Rule does not amount to the issuance or denial of a permit did not overcome the arguments of the Agencies. “[The petitioners] have clearly failed to identify any substantial reason to conclude the preference favoring direct circuit court review – created by Congress in [§509(b)(1)] and honored by the Supreme Court – does not, in this case, ultimately serve all parties’ interests in efficiency, judicial economy, clarity, uniformity and finality.” Slip. Op. at 15-16. He emphasized a strong preference for construing the §509 provisions for direct circuit court review by a “practical, functional approach rather than a technical approach,” and noted that while petitioners’ argument was “facially consonant with the plain language” of §509, it lacked any solid support in the case law. Slip Op. at 16. Among the cases that the Agencies relied upon was the Sixth Circuit’s prior decision in National Cotton Council v. U.S. EPA, which held that subsection (F) authorizes direct review not only of actions issuing or denying particular permits, but also of regulations governing the issuance of permits. Judge McKeague noted that National Cotton’s construction is consistent with congressional purpose, which was also the guiding principle behind the decision in E. I. du Pont and other cases.

In conclusion, Judge McKeague noted that the judicial review provisions of the Act have been consistently construed “not in a strict literal sense, but in a manner designed to further Congress’s evident purposes” and that “the scope of the direct circuit court review has gradually expanded.” According to Judge McKeague, the petitioners “have failed to identify any particular circumstances or practical considerations that would justify holding that adjudication of the instant petitions for judicial review in the various district courts would better serve Congress’s purposes.” Slip Op. p. 18.

Judge Griffin’s Concurrence

Judge Griffin delivered a separate opinion, concurring in the judgment only, noting that ‘were it not for National Cotton, I would grant the [petitioners’] motions to dismiss.”   Advocating a textualist approach, rather than a “functional one,” Judge Griffin noted that the question is not “[w]hether it is desirable for us to possess jurisdiction for purposes of the efficient functioning of the judiciary, or for public policy purposes…. Rather, the question is whether Congress in fact created jurisdiction in the courts of appeals for this case. I conclude that it did not.” Slip Op. at 20.

According to Judge Griffin, the term “other limitation” in subsection (E) has to be read in conjunction with the statutory sections referenced in subsection (E). In other words, “‘any effluent limitation or other limitation’ must be related to the statutory boundaries set forth in §§1311, 1312, 1316, and 1345.” Slip Op. at 21. The problem, he points out, is that the Rule modifies the definition of “navigable waters” in §1362, which is not among the sections listed in subsection (E).   Judge Griffin reads E.I. du Pont more narrowly than Judge McKeague, claiming that the lead opinion takes dicta from that case and impermissibly expands it to find jurisdiction proper.

On subsection (F), Judge Griffin agreed with Judge McKeague that the court can hear the challenges, but for different reasons. Specifically, he agreed that National Cotton is controlling, but disagreed that it was correctly decided. In Judge Griffin’s view, under a plain text reading, the Clean Water Rule neither issues nor denies an NPDES permit. “In my view, this should end the analysis [under subsection (F)]. I am, however, constrained by our court’s precedent holding that ‘issuing or denying any permit’ means more than just that.” Slip Op. at 27,

Among the arguments Judge Griffin made in support of his opinion was the fact that the Rule applies across the entire Act, not just to NPDES permits. Thus, the Rule also affects §1344, which requires the Corps to issue permits for dredge and fill material. But, as the Judge points out, §1344 is not mentioned in subsection (F), only §1342 is.

Despite his disagreement with its holding, Judge Griffin ultimately conceded that National Cotton “dictates my conclusion,” Slip Op. at 29, and “expands jurisdiction to review any regulation ‘governing’ permits.” Id. at 30. “Although, in my view, the holding in National Cotton is incorrect, this panel is without authority to overrule it.” Id.  Thus, he agreed with the lead opinion that under subsection (F), the court has jurisdiction to hear the case.

Judge Keith’s Dissent

Judge Keith agreed with Judge Griffin’s reasoning and conclusions that neither subsection (E) nor (F) confers original jurisdiction on the appellate courts. However, where Judge Griffin ultimately concluded he was bound by National Cotton, Judge Keith disagreed. He reads the National Cotton decision as having expanded subsection (F) in a more limited fashion, to “cover rules that regulate the permitting procedures,” and not to include “anything ‘relating’ to permitting procedures.” Slip Op. at 32. Consequently, he disagrees with Judge Griffin’s conclusion that National Cotton is binding. “That a rule ‘relates’ to a permitting procedure does not mean that it ‘regulates’ or ‘governs’ that procedure. Therein lies the analytical fallacy in the concurrence. Simply put, it cannot be that any rule that merely ‘relates’ to permitting procedures – however tenuous, minimal, or tangential that relation may be – confers original jurisdiction upon this court under subsection (F). This could not have been the intent of the legislators who drafted seven carefully defined bases for original jurisdiction in the appellate courts – and it could not have been the intent of the National Cotton court itself.”   Id. The Judge concluded by noting that “[i]f this court construes the holding to be so broad as to cover the facts of this case, that construction brings subsection (F) to its breaking point; a foreseeable consequence of the concurrence’s reasoning is that this court would exercise original subject-matter jurisdiction over all things related to the Clean Water Act.” Slip Op. at 33.

What Next?

Barring an effort by the Petitioners to seek review of this decision — either en banc or with the Supreme Court — the decision means that the Sixth Circuit will hear the merits of the consolidated challenges to the Clean Water Rule.

© Steptoe & Johnson PLLC. All Rights Reserved.National Law Review, Volume VI, Number 56

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