Reverse Us, Please: The Sixth Circuit and WOTUS Jurisdiction

The United States Court of Appeals for the Sixth Circuit just released on opinion retaining jurisdiction in the litigation challenging the joint EPA/Army Corps Clean Water Rule, also often known as the Waters-of-the-United States (or WOTUS) rule.  The question before the court was whether the Clean Water Act assigned jurisdiction over challenges to the rule to the courts of appeals or to federal district courts.  Many of the rule's challengers wanted their claims in district court, or so they argued; the federal government sought to keep the case in the Sixth Circuit.  Today, the feds prevailed; the Sixth Circuit held that jurisdiction should remain at the appellate level.

It reached that conclusion with very little agreement or enthusiasm.  The case produced three opinions, with two concurring in the retention of jurisdiction, but not on the rationale, and one dissenting.  All three judges agreed that the best reading of the statute would have assigned jurisdiction to the federal district courts.  But two of the three judges believed that binding judicial precedent foreclosed that reading of the statute.  That resulted in statements like this, all from the judges who ruled in favor of appellate jurisdiction, and thus for the federal agency defendants.

Judge McKeague:

-"On its face, the Agencies' argument is not compelling."

-"While [the challengers'] plain arguments are not without facial appeal, we are hardly at liberty to ignore the consistent body of case law that has sprung from that language in encounters with the real world...  Were we arguing on a blank slate, the argument would be more persuasive, but we're not."

Judge Griffin:

- "I concur in the judgment... only because I am required to follow our precedentially-binding decision...

- "In my view, it is illogical and unreasonable to read the text of either [of the Clean Water Act jurisidictional provisions at issue] as creating jurisdiction in the courts of appeals for these issues."

That kind of language seems an awful lot like an invitation for Supreme Court (or en banc) review.  But will that invitation to the Court be granted?  For two reasons, I suspect it might not.  

The first is that there might not be a cert petition.  The petitioners who "lost" on this motion might have decided that they're actually quite happy to stick with the Sixth Circuit, where they've drawn a conservative panel--a panel, in fact, that already has stayed the rule.  Their only advantage to a cert petition might be to draw out the litigation a little longer, and thus to potentially lengthen the stay.  And the Department of Justice isn't exactly likely to appeal when it just won.

The second reason is that the Supreme Court might not have any interest in granting cert.  The issue here is specific to one statute.  There isn't a circuit split.  And the issue probably wouldn't strike the justices as very interesting or important.  Indeed, the one Justice whose interest a cert petition might have piqued would have been Justice Scalia, who I think would have been rather offended at the non-literal readings prior courts had given to the statutory text in question.  And Justice Scalia, of course, has passed away.

So the case may very well continue forward in the Sixth Circuit, heard by a panel of judges that would have unanimously dismissed the challenges, and would have let those challenges proceed instead in federal district court, had they believed governing judicial precedent allowed that option.

- Dave Owen