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Media Alerts - Sixth Circuit stays EPA's new Clean Water Act regulations
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October 20, 2015
  Sixth Circuit stays EPA's new Clean Water Act regulations
State of Ohio v. U.S. Army Corps of Eng'rs -- Sixth Circuit

Headline: Sixth Circuit pulls the plug on EPA's new Clean Water Act regulations

Area of the Law: Clean Water Act jurisdiction; environmental protection

Issue Presented: Whether the Sixth Circuit should stay enforcement of the EPA's new Clean Water Rule and restore the status quo as it existed before the Rule went into effect.

Brief Summary: Various states sued to challenge the validity of the EPA's new Clean Water Rule, 80 Fed. Reg. 37,054. The states alleged that the rule's definitional changes negatively altered the existing federal-state balance on matters concerning the integrity of the nation's waters. The states also argued that the rule violated the law as defined by the Supreme Court and that the Rule's adoption violated the requirements of the Administration Procedures Act. The states sought to stay the execution of the Rule pending judicial review of their claims. Although the court did not confirm its jurisdictional authority, it ruled that it did have the authority to make orders that preserved the subject of the petition. The Court found that the states showed a substantial likelihood of success on the merits of their case. And because the Court recognized the burden that government bodies - both state and federal--and private parties would experience if the Rule went into effect, it granted the states' motion for a stay.

Extended Summary: Eighteen states sued the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency to challenge the validity of the Clean Water Rule that went into effect on August 28, 2015. The Clean Water Rule clarifies the definition of protected waters, within the United States, as used in the Clean Water Act, 33 U.S.C. ยง1251. The states' multi-circuit cases were transferred and consolidated before the Sixth Circuit. The states argued that the new definitions change the Corps' and the EPA's regulatory jurisdiction and alter the federal-state balance on restoring and maintaining the integrity of the nation's waters. The states also argued that the Rule violates the law as defined by the Supreme Court and that the Rule's adoption violates the requirements of the Administration Procedures Act. The states moved to stay enforcement of the Clean Water Rule pending judicial review of their claim and to restore the status quo as it existed before the Rule went into effect.

The Court considered four factors in reaching its decision to grant the states' stay motion: (1) the likelihood that the party seeking the stay would prevail on the merits of the appeal; (2) the likelihood that the moving party would be irreparably harmed absent a stay; (3) the prospect that others would be harmed if the stay was granted; and (4) the public interest in granting the stay. The Court noted that these factors were not prerequisites to be met, but interrelated considerations to be balanced as long as the states, through sound legal principles, could show that the circumstances of their case justified the Court's using its discretion.

The Court found that there was a substantial possibility that the states would succeed on the merits because the states had a plausible argument that the Rule's new definition of navigable waters conflicts with the Supreme Court's opinion in Rapanos v. United States, 547 U.S. 715 (2006). Moreover, the Corps and the EPA lacked proof to rebut the states' argument that the Rule violates the Administrative Procedures Act because it was not a product of reasoned decision-making and because the Corps and EPA failed to include the Rule's details when it was published for comment.

Although the Sixth Circuit found that there was no compelling showing that any of the states would suffer irreparable harm, the court also determined that the integrity of the nation's waters would not suffer if the Rule was not immediately enforced. In balancing the harm, the Court instead focused on the Rule's redrawing of jurisdictional lines and the potential burden that governmental bodies - state, federal--and private parties might experience from uncertainty over the Rule's requirements.

Based on these findings, the Court held that it had discretion to rule on the states' stay motion to preserve the status quo pending further proceedings. It also held that regardless of the states' challenge to subject matter jurisdiction - a matter currently pending before the Court - the Court had the authority to make orders that preserved the subject of the petition.

Thus, the Court ruled that enforcement of Clean Water Rule was stayed until further order of the Court.

Dissent: The dissent, authored by Judge Keith, argued that the Court needed to first determine subject-matter jurisdiction before granting the stay. Because this threshold determination was still being decided, Judge Keith argued that enjoining implementation of the rule could only occur after the Court determined that they had jurisdiction to review the Rule.

Panel: Circuit Judges Damon J. Keith, David W. McKeague, and Richard A. Griffin

Date of Issued Opinion: October 9, 2015

Docket Number: Nos. 15-3799/3822/3853/3887

Decided: Petitioners' Motion for stay GRANTED.

Author of Opinion: Circuit Judge David W. McKeague

Author of Dissenting Opinion: Circuit Judge Damon J. Keith

Case Alert Author: Karen Wentz

Case Alert Circuit Supervisor: Professor Mark Cooney

Link to Full Opinion: http://www.ca6.uscourts.gov/op...ns.pdf/15a0246p-06.pdf

    Posted By: Mark Cooney @ 10/20/2015 12:50 PM     6th Circuit  

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