WASHINGTON, Feb. 22, 2016 - The 6th Circuit Court of Appeals presented a laundry list of reasons why it should not decide the legal challenges to the Obama administration’s WOTUS rule. But, in a decision released Monday, the panel said its hands were tied by precedent.

More than a dozen cases seeking to overturn the rule have been consolidated in the appeals court, located in Cincinnati. At oral arguments on Dec. 8, the three judges on the panel sounded as if they agreed with the federal government, which was arguing that the case should stay there.

On the other side were a host of states, and groups including the American Farm Bureau Federation, Michigan Farm Bureau and Washington Cattlemen’s Association.

The victory for the government comes with a caveat: The 2-1 decision contains plenty of language that WOTUS opponents can use to ask the court to rehear the case. Most likely, that would take the form of a petition for rehearing en banc – a request that all the court’s active judges hear the case. The parties seeking a rehearing have 45 days from the judgment date to file the rehearing request.

Implementation of the WOTUS rule – the acronym stands for “waters of the U.S.” – was stayed nationwide by the 6th Circuit while it decided the jurisdictional issue. The 11th Circuit Court of Appeals, located in Atlanta, put its proceedings on hold while the 6th Circuit case went forward. The 11th Circuit probably will relinquish any claim it has on the litigation, leaving it in control of the 6th Circuit.

There are also at least a half dozen cases in district courts challenging the rule. An observer would expect a circuit court decision to trump a district court, but given the presence of multiple cases in multiple circuits, it’s not absolutely clear what will happen now.

What is clear is that each of the three 6th Circuit judges looked at the law and the legal precedent and interpreted it differently.

The opinion’s author, Circuit Judge David W. McKeague, said the court was bound by a decision issued by the 6th Circuit in 2009, National Cotton Council (NCC) v. EPA, which determined that EPA illegally exempted pesticide applications from the permit requirements under the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES).

The NCC holding that mattered was not the one on NPDES, but the one to take up the case in the first place. At issue was whether provisions in CWA Section 1369 that address effluent limitations and permitting should be reviewed by the circuit courts or the district courts.

McKeague was joined by a reluctant Circuit Judge Richard Allen Griffin, who said that without the NCC decision, he would not have joined McKeague in his judgment. Senior Circuit Judge Damon J. Keith dissented.

McKeague said that even if the court “believed National Cotton… was wrongly decided, we would still not be free to reject its holding.”

He conceded, however, that “on its face, the agencies’ argument is not compelling.” Neither EPA nor the Army Corps of Engineers approved or promulgated any limitation imposing “any restriction or requirement on point source operators or permit issuers.”

“We acknowledge that the rule is definitional only and does not directly impose any restriction or limitation,” McKeague wrote. “Yet, neither does the rule create an exemption from limitation. By clarifying the definition of ‘waters of the United States,’ the rule undeniably has the indirect effect of altering permit issuers’ authority to restrict point-source operators’ discharges into` covered waters. The alteration invariably results in expansion of regulatory authority in some instances and imposition of additional restrictions on the activities of some property owners.”

Griffin, however, said that “whether it is desirable for us to possess jurisdiction for purposes of the efficient functioning of the judiciary, or for public policy purposes, is not the issue. Rather, the question is whether Congress in fact created jurisdiction in the courts of appeals for this case.”

He did not believe so, but joined McKeague because he felt that NCC gave him no choice.

Keith disagreed, saying Griffin went too far in finding that the NCC decision allowed review in the circuit courts of anything “relating” to permitting procedures.

“While National Cotton expanded the scope of (the relevant subsection of the CWA) to cover rules ‘regulating’ or ‘governing’ permitting procedures, . . . it did not expand that subsection to cover all rules ‘relating’ to those procedures, such as the one at issue here—a rule that merely defines the scope of the term ‘waters of the United States.’ 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.”



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