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Sixth Circuit Grants Motion to Pause WOTUS Litigation Pending Supreme Court Review

On January 25, 2017, the U.S. Court of Appeals for the Sixth Circuit granted a motion to hold briefing in abeyance in the litigation over a joint rulemaking by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (ACE) that amends the definition of "waters of the United States" (WOTUS Rule). Murray Energy v. EPA, No. 15-3751 (6th Cir. Jan. 25, 2017) (order granting motion to hold briefing in abeyance) (Order). The motion was granted in light of the Supreme Court's decision to hear arguments over whether district or appellate courts have jurisdiction under the Clean Water Act (CWA) to review challenges to the WOTUS rule. National Association of Manufacturers v. U.S. Department of Defense, No. 16-299 (S. Ct.).

Due to uncertainty about whether certain CWA judicial review provisions apply to the WOTUS Rule, many parties challenging the rule brought suit in both circuit and district courts. Challenges filed in seven circuit courts were consolidated in the Sixth Circuit in 2015, while over a dozen district court challenges proceeded separately. The Sixth Circuit ruled in February 2016, that it has jurisdiction to review challenges to the WOTUS Rule, settling the jurisdictional issue for the circuit court challenges consolidated in the Sixth Circuit, but leaving the question unresolved for district and pending circuit court cases not consolidated in the Sixth Circuit. See KEAG Bulletin No. 2016-09, dated April 22, 2016. Since the Sixth Circuit's jurisdictional decision, most of the district court cases have been stayed or dismissed pending the Sixth Circuit's ruling on the validity of the WOTUS Rule.

By granting certiorari, the Supreme Court will have the opportunity to resolve a long-standing circuit split regarding the reach of the judicial review provisions in the CWA, which provide for direct review in appellate courts of seven distinct actions by the EPA Administrator. 33 U.S.C. § 1369(b). If the Supreme Court upholds the Sixth Circuit's decision, the ultimate ruling by the Sixth Circuit on the WOTUS Rule's validity would be applicable nationwide. However, if the Supreme Court overturns the Sixth Circuit's ruling, separate district court cases could proceed and reach varying conclusions about the WOTUS Rule, potentially resulting in conflicting decisions on appeal.

©2018 Katten Muchin Rosenman LLP

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About this Author

Katie Bennett Hobson, Environmental Attorney, Katten Firm Law
Associate

Catherine "Katie" Bennett Hobson advises clients on environmental issues, focusing on environmental regulatory matters with an emphasis on compliance obligations under federal and state air quality, water quality and waste rules. She also counsels clients on workplace safety and health matters, particularly where workplace safety issues and environmental issues intersect. Her representation includes a broad range of environmental permitting, compliance, transactional and litigation matters. 

Prior to joining Katten, Katie served as a law clerk for the Texas Commission on...

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Danny Worrell, Environmental Litigation, Superfund, Katten Law Firm
Partner

Danny Worrell focuses his practice on environmental contested case permitting and enforcement, Superfund litigation, and transactions and investigations involving environmental matters. He advises clients on regulatory compliance involving solid and hazardous waste, air quality, water quality, injection wells, underground and above-ground storage tanks, asbestos, polychlorinated biphenyls (PCBs), water and wastewater utilities, pesticides and pipelines, and in situuranium mining.

Danny previously worked as a geologist for the ARCO Oil and Gas Company, specializing in oil and gas exploration. While attending law school, he was a member of the staff of the Houston Journal of International Law. Danny has earned an MS and a BS in geology.

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