On February 22, 2016, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit ruled (2-1) that the Sixth Circuit, not the District Court below, was the appropriate venue for consideration of challenges, by both state and private-sector petitioners, to the “Waters of the United States” (WOTUS) final rule (aka “Clean Water Rule”) published by EPA and the U.S. Army Corps of Engineers in June 2015 (80 Fed. Reg. 37,054) (effective August 28, 2015). The WOTUS rule represents the agencies’ most recent effort at defining, by regulation, those waters and wetlands that fall within the reach of many essential Clean Water Act provisions (e.g., provisions relating to permitting and state water quality certification), and those that do not. This decision concerning venue ends a four-month period during which the final rule has been stayed, but its merits have not been considered.
The two judges who ruled in favor of the case proceeding in their court are the same ones who had ruled in favor of imposing the stay. Their decision to order a stay reflects their conclusion that the challengers had demonstrated a likelihood of success on the merits. The merits will now be heard by the same three-judge panel (absent rehearing, en banc, of the panel’s decision on venue). If, as some speculate to be likely, the substance of the WOTUS rule is invalidated by the panel, there is the possibility—arguably, given the stakes, the probability—of rehearing en banc before the entire Sixth Circuit. Once finally decided by the Sixth Circuit, the case is likely to make its way to the U.S. Supreme Court, the composition of which, at this time, is its own question. It would be reasonable to speculate that the final word of the Sixth Circuit will arrive prior to the confirmation of a new justice of the U.S. Supreme Court, but equally reasonable to guess that the Sixth Circuit might need more time, or just take its time, in reaching an ultimate conclusion.