Friday, October 9, 2015

More Irony, More Complexity in Sixth Circuit Clean Water Rule Decision

Dave’s post about the Sixth Circuit’s decision today placing a temporary stay on the Clean Water Rule aptly notes irony and complexity in the court’s ruling:  the elements of the Rule with which the court finds potential fault may actually benefit the petitioners’ anti-regulatory objectives.  Another irony, and layer of complexity, is that the petitioners obtained the stay from a court that they believe lacks jurisdiction to hear the case. 

The Sixth Circuit decision arises in the context of a petition for review brought by eighteen states directly in courts of appeals pursuant to Clean Water Act § 509(b)(1), 33 U.S.C. § 1369(b)(1).  That provision provides for challenges to certain agency actions under the Clean Water Act to be brought directly in courts of appeals as petitions for review rather than in federal district courts. 

The petitioners, who oppose the Clean Water Rule, would rather their challenge not fall under § 509(b)(1).  This is because agency actions that fall under § 509(b)(1) can be challenged only by a petition for review and not in any subsequent proceeding.  Thus, if the Rule falls under § 509(b)(1), a defendant to an EPA enforcement action could not invoke, as a defense, that the Rule is impermissibly broad and the Act therefore does not apply.

Why did the petitioning states file a petition for review under § 509(b)(1) if they don’t believe it applies—or at least don’t want it to apply?  The petitioning states filed both complaints in district courts and petitions for review in courts of appeals.  They filed their petitions protectively, merely to protect against the possibility that their district court challenges will be dismissed for lack of jurisdiction on the ground that they must be brought instead as petitions for review under § 509(b)(1).  [Two district courts have held that challenges to the Rule must be brought under § 509(b)(1), and one has held that they can be brought in district court.]  Thus, the petitioners have moved to dismiss their own petitions for lack of jurisdiction, hoping that the Sixth Circuit will hold that challenges to the Clean Water Rule should be brought as suits in district court. 

If the Sixth Circuit agrees with the petitioners on the jurisdictional question, it will have to dismiss the petitions for review, which will dissolve the stay as well.  In granting the stay, the Sixth Circuit noted that it will decide the threshold jurisdictional question “in a matter of weeks.”  Thus, if the petitioners are correct that the Sixth Circuit lacks jurisdiction, their stay from the Sixth Circuit may be very short-lived.  Of course, if the petitioners win on the merits, then they will have defeated the Rule and won’t be sorry that they had to proceed under § 509(b)(1).  What the petitioners do not want—and what still may happen—is for the Sixth Circuit to hold that § 509(b)(1) applies and then to uphold the Rule on the merits.

−Todd Aagaard

http://lawprofessors.typepad.com/environmental_law/2015/10/more-irony-more-complexity-in-sixth-circuit-clean-water-rule-decision.html

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