Sixth Circuit Court Agrees to Hear Challenges to WOTUS

The Swamp Stomp

Volume 16, Issue 10

On February 22, the U.S. Circuit Court of Appeals for the Sixth District agreed to hear consolidated arguments against the Waters of the United States rule. This comes after the injunction made by the court last year, that postponed challenges against the rule until various legal issues could be solved.

This development comes after the same district court heard arguments for and against consolidating the various cases against the WOTUS rule on December 8 of last year. Those in favor of implementing the rule argued that consolidating the cases and having the Sixth Circuit review them as one would streamline the process to a final ruling. Those against the rule wanted the individual federal district courts to each review the cases, so that the rule could undergo more scrutiny. This new ruling means that the Sixth Circuit will be the only court making a decision for now.

The National Law Review reported that the court cited its ruling in National Cotton Council v. EPA in its decision to hear the challenges. The ruling of the 2009 case set precedent for the Sixth Circuit reviewing cases on the affecting of granting and denying permits. The court decided that since these new cases will directly impact permitting rules, and therefore it has jurisdiction over the arguments on the WOTUS rule.

Despite disagreeing with the Sixth Circuit’s decision in National Cotton Council v. EPA, Judge Richard Allen Griffin agreed with the court’s decision this time, due to the precedent set by the previous case, reported KTIC Radio.

“I concur in the judgment holding that we possess subject-matter jurisdiction in this case; thus, I join in denying petitioners’ motions to dismiss. However, I do so only because I am required to follow our precedentially-binding decision, National Cotton Council of America v. U.S. E.P.A., 553 F.3d 927 (6th Cir. 2009). Were it not for National Cotton, I would grant the motions to dismiss,” he wrote.

Paul Beard, a California attorney with Alston and Bird’s environment, land use and natural resources practice group, said that the court had reached the wrong decision. He stated that this ruling will bring the challenges to the Supreme Court faster, as well. However, he did not express optimism at his view on how the rule will be decided.

“With Justice Scalia’s untimely passing, the court’s 5-4 balance in favor of robust review of sweeping environmental rules like the WOTUS rule is no more,” Beard said.

The National Law Review also reported that this decision is significant because of recent event in the Eleventh District Court. There, 11 states were attempting to overturn a decision by a Georgia district court that had a concurring opinion with the Sixth Circuit’s decision. The final decision for that had been put on hold until the Sixth Circuit made one.

Sources

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/22/sixth-circuit-claims-jurisdiction-to-hear-merits-of-challenge-to-epa-waters-of-the-united-states-wotus-rule/

http://www.natlawreview.com/article/sixth-circuit-agrees-to-hear-challenge-to-clean-water-act

http://kticradio.com/agricultural/sixth-circuit-court-to-hear-wotus/

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