Inside the Beltway: A River Runs Through It - A Review of The Latest Legal Proceedings on WOTUS

2015-09-27 | , GCSAA - September 2015 - Bob Helland

Since the Clean Water Rule became effective on August 28th (commonly known as “WOTUS”), there have been a number of legal challenges filed against it in federal courts across the country.  31 states, along with a number of industry groups, have either filed or joined legal actions at both the federal district court and circuit court level, seeking to stop the rule on the grounds that it violates the United States Constitution as well as exceeds the scope of the underlying statute involved, the Clean Water Act.  The federal government has responded by seeking to consolidate the cases both at the district and circuit court level in an effort to avoid inconsistent pre-trial decisions as well as find the most favorable court possible to review the rule.  It is expected that this procedural maneuvering will continue for the next few months, at least.  This blog entry discusses the latest developments.


First, 31 states have filed action against WOTUS in federal district court.  WOTUS is a rule with nationwide scope.  It has invoked a nationwide response:  31 states have joined a number of industry and environmental groups in filing 15 complaints in 12 federal district courts across the country.   They are Alaska, Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin and Wyoming.  The state and industry complaints seek to stop the rule from taking effect.


Two recent and important developments have occurred before the district court:


1) The Federal Government has sought to stay all proceedings in the district courts and then consolidate the pending cases before the United States District Court for the District of Columbia.  A hearing on the consolidation question is expected on October 1st.  A number of plaintiffs are opposing this, including Ohio, Oklahoma, Texas, North Dakota, and Georgia.


2) In the District of North Dakota, Judge Ralph Erickson on August 27 determined that the District Court should retain jurisdiction over a lawsuit against WOTUS filed by North Dakota and joined by Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, South Dakota and Wyoming.  Additionally, he granted plaintiffs’ motion for a preliminary injunction because he agreed both that the underlying complaint would prevail and irreparable harm would happen without the WOTUS rule being stopped.  So the rule is – temporarily – halted in those 13 states but remains in effect in the 37 others.


Second, action is also occurring at the circuit court level.  The activity does not stop at the district court level.  The same 31 states who filed lawsuits in the district court have filed petitions seeking review of WOTUS in the circuit courts, as a kind of “insurance policy”.  This action is prompted by the possibility that language in the Clean Water Act would provide the Circuit Court with sole jurisdiction over the WOTUS rule.


Section 509 provides exclusive jurisdiction in the circuit court for a number of actions by the EPA, including those impacting permits under the National Pollutant Discharge Elimination System (NPDES).  The federal government argues that the WOTUS rule does impact permits and therefore the Circuit Court should hear the case.   Three recent important developments have occurred before the circuit court:


1) In August, the Judicial Panel on Multi-District litigation agreed to consolidate 15 industry, state and environmental petitions at the 6th Circuit Court, with appellate jurisdiction over the district courts in Kentucky, Michigan, Ohio and Tennessee.


2) On September 10, 2015, a group of 18 states unsatisfied with their district court decisions filed a motion before the 6th Circuit to put a nationwide stay in effect on the WOTUS rule.


3) Also on September 10th, the State of Georgia appealed a decision by the District Court for the Southern District of Georgia to dismiss its complaint against the WOTUS rule.  The District Court had agreed that the matter should be heard before the 6th Circuit, pursuant to the Clean Water Act.  Georgia is appealing the decision to the 11th Circuit Court of Appeals.  A decision on the appeal is expected soon.


Until a final decision is made on where jurisdiction belongs, expect procedural action to continue at both the District Court and Circuit Court level with a decision on the merits of the rule not expected until late 2015 at the earliest.  If such a decision is appealed, as is likely, this may not be settled until 2016.