March 18, 2018

March 16, 2018

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U.S. Court of Appeals Issues Split WOTUS Ruling

On February 22, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit (Cincinnati) issued a split 2-1 decision, ruling that it has jurisdiction to proceed with challenges to the Obama administration's "Waters of the United States" rule, or WOTUS, as opposed to federal district courts. A wide range of government, industry and agriculture interests have filed lawsuits in several district courts across the U.S. challenging the WOTUS rule.

The decision came in the form of three separate opinions, as each judge had a different view of the law on this complex issue. Two judges concluded that the appellate court has jurisdiction over the legal challenges to the WOTUS rule; the third judge concluded that the appellate court lacks jurisdiction over these cases.

It is speculated that the split decision makes it very likely that the state and industry petitioners will seek en banc review of the ruling, meaning that it would go to rehearing before the entire Sixth Circuit for additional review. Challengers will need to petition the court within 45 days to request rehearing.

The decision, which does not answer the legality of the WOTUS rule, but rather which court has authority to review it, means that stay of the WOTUS rule issued last year by the Sixth Circuit will continue in effect until further rulings.

The decision could also be appealed, potentially to the U.S. Supreme Court.

© 2018 Varnum LLP


About this Author

Aaron M. Phelps, Varnum, corporate governance disputes attorney, telecommunications lawyer

Aaron's practice is primarily focused on commercial litigation - in Michigan and around the country. His practice includes complex contract and corporate governance disputes, telecommunications and energy matters, and health care litigation. Most recently Aaron has been representing over 60 companies in lawsuits against Blue Cross Blue Shield of Michigan for ERISA violations (first trial resulted in $6 million judgment).

Aaron also has expertise in the environmental area, having defended civil enforcement proceedings, conducted contested case...