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.