Sixth Circuit Stays WOTUS Rule Nationwide

Today, the U.S. Court of Appeals for the Sixth Circuit¹ stayed the rule redefining the scope of federal jurisdiction under the Clean Water Act (CWA) in the consolidated multi-circuit challenge to the "Waters of the United States (WOTUS) Rule." See In re Environmental Protection Agency and Department of Defense Final Rule; "Clean Water Rule: Definition of Waters of the United States," 80 Fed. Reg. 37,054 (June 29, 2015), Nos. 15-3799/3822/3853/3887 (6th Cir. Oct. 9, 2015). 

Remarkably, the Sixth Circuit stayed the rule nationwide in order to preserve the long-time status quo understanding of CWA jurisdiction even while motions to dismiss on jurisdictional grounds are pending. The order grants the stay "pending determination of our jurisdiction" under CWA section 509(b). Slip op. at 3. Briefing on whether the WOTUS rule is an action subject to direct review by a court of appeals under CWA section 509(b) is underway before the Sixth Circuit, and the court noted that the jurisdictional issue will be "ripe for decision in a matter of weeks." Id.

Even though the majority acknowledged the dissent’s concern that the court should not issue a stay before confirming its jurisdiction, the majority noted that it has "no doubt" of its authority to issue orders to "preserve the existing conditions and the subject of the petitions." Id. at 4. To that end, the majority clarified that "the status quo at issue is the pre-Rule regime of federal-state collaboration that has been in place for several years." Id. at 3. 

Rather than focus on whether there was imminent or irreparable injury to petitioners or the environment, the Sixth Circuit focused its rationale on the burden that would be borne nationwide by governmental entities, private parties, and the public, by the Rule's "effective redrawing of jurisdictional lines" and "the sheer breadth of the ripple effects caused by the Rule’s definitional changes." Id. at 5-6.

With that order, the Sixth Circuit becomes the second court to conclude that litigants challenging the WOTUS rule have demonstrated a likelihood of success on the merits of their claims.² The court questioned whether the WOTUS rule’s distance limitations "are harmonious with" Justice Kennedy's concurrence in Rapanos v. United States, 547 U.S. 715 (2006). Slip op. at 4. The court also indicated that the rulemaking process by which those distance limitations were adopted was "facially suspect" because the proposed rule did not include those distance limitations in defining "adjacent waters" or "significant nexus." Id. Moreover, the court noted that "respondents have failed to identify anything in the record that would substantiate a finding that the public had reasonably specific notice that the distance-based limitations adopted in the Rule were among the range of alternatives being considered." Id. at 5.

The decision and national stay beg the question of whether the stay will remain in effect if the Sixth Circuit determines it has jurisdiction over the petitions. The stay could be short lived if the court determines that jurisdiction to review the WOTUS Rule lies with the district courts, leaving only the 13-state preliminary injunction in place from the North Dakota federal court.

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¹ The Sixth Circuit was chosen by the Judicial Panel on Multi-District Litigation to preside over the consolidated challenges to the WOTUS rule that were filed in courts of appeals nationwide by various states, environmental groups, and regulated entities. Many petitioners who challenged the WOTUS rule in a court of appeals clarified that their filings were "protective" and that they believe that jurisdiction to review the WOTUS rule lies in the district courts. Consequently, many petitioners have moved to dismiss the consolidated Sixth Circuit action.

² In late August, the U.S. District Court for the District of North Dakota preliminarily enjoined the WOTUS rule in 13 states after finding, among other things, that the plaintiffs were likely to succeed on the merits of their claim that the WOTUS rule is unlawful. We discussed that decision in a prior Client Alert.