Environmental -- active



Murray Energy Corp. v. EPA   (6th Circuit)

Rule broadening definition of "waters of the United States"

The NAM moved to intervene in these consolidated cases in which various environmental and business organizations, as well as states, challenge a final rule from the EPA defining its jurisdiction over navigable waters of the United States under the Clean Water Act. Quite a few other cases challenging the same rule were filed in federal district courts around the country, in this one in which the NAM joined with more than a dozen other organizations challenging the rule in federal court in Texas. The courts have not resolved whether these challenges should be heard in district court or the court of appeals in the first instance.

Our intervention in these appellate cases is to allow us to move to dismiss the cases, as we believe the statute that provides appellate jurisdiction for certain challenges to EPA regulations does not apply to this challenge under the Clean Water Act. That motion was filed Oct. 2, 2015.

Meanwhile, various states asked the court for a stay of enforcement of the rule pending resolution of the litigation over it, and on Oct. 9, the court agreed. It issued a nationwide stay at least until the court could determine whether it had jurisdiction.

In order to issue the stay, the court decided that keeping the status quo (the EPA's enforcement jurisdiction prior to the new rule) is the best course of action because of "the sheer breadth of the ripple effects caused by the Rule's definitional changes." It also concluded that the petitioners "have demonstrated a substantial possibility of success on the merits of their claims," finding that the rule's new distance limitations are not clearly harmonious with Supreme Court precedent. It found that those limitations are likely to be found not to be the logical outgrowth of the EPA's proposed rule and therefore the agency failed to provide adequate notice and an opportunity to comment on the distance limitations.

While the court did not find irreparable harm had it allowed the new rule to stay in effect, it found that there was likewise no imminent injury to the nation's waters by staying the rule pending resolution of the litigation.

The NAM and others filed a motion to dismiss 10/2/2015, arguing that federal appeals courts are limited by statute to hearing only certain kinds of appeals from agency rulemakings under the Clean Water Act, and this is not one of them. Prompt resolution of this jurisdictional issue is important so that the case can proceed expeditiously through the courts, and presumably ultimately to the Supreme Court, without be delayed by this procedural question.

On Feb. 22, 2016, the court issued a splintered ruling that it has jurisdiction to hear this challenge, and kept the stay in place while it proceeds to hear arguments on the merits of the case. Our coalition filed a petition for rehearing en banc, arguing that the ruling raises more questions than it answers and casts doubt and uncertainty on the future course of many challenges to the rule. It is important to get a more definitive ruling now on the jurisdictional question than waste party and judicial resources to litigate the merits of the case only to find out later that the court did not actually have jurisdiction to hear it. The full court declined to rehear the case, meaning that the judges will now turn to the merits of the dispute. The NAM appealed the jurisdictional issue to the Supreme Court in the interim.

Industry and state petitioners filed their main briefs on the merits on November 1. The industry brief contains textbook examples of arguments that are all too frequently made about government regulations: the rule was promulgated in violation of basic principles of notice-and-comment rulemaking, the agencies failed to comply with the Regulatory Flexibility Act, the rule is inconsistent with the statutory language of the statute (the Clean Water Act), the rule is unconstitutionally vague, and it violates the Commerce Clause and federalism principles. There are also more unusual arguments arising from the EPA’s “covert propaganda” efforts in support of the rule.

On Jan. 23, 2017, the NAM and 17 co-petitioners filed a motion to hold the briefing schedule in abeyance pending the Supreme Court's decision in NAM v. Dep't of Defense, involving which courts have jurisdiction to hear the Waters cases. The Sixth Circuit granted our motion on Jan. 25.


Related Documents:
Industry brief on the merits  (November 1, 2016)
NAM petition for rehearing en banc  (February 29, 2016)
Shopfloor blog on petition for rehearing  (February 29, 2016)
NAM motion to dismiss  (October 2, 2015)
NAM motion to intervene  (August 11, 2015)

 


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