On Monday, the Sixth Circuit agreed to hear challenges to a controversial rule redefining the federal government’s jurisdiction under the Clean Water Act. Industry and environmental groups have argued that it would be better for the nearly 20 lawsuits filed regarding the rule to be decided at the district level. In Murray Energy Corporation v. EPA, a divided panel of the Sixth Circuit, however, agreed with the EPA and the Army Corps of Engineers that a single circuit court is the appropriate forum.
The Sixth Circuit panel was asked to decide whether the federal government was correct in asserting that a change in the definition of “waters of the United States” in the Clean Water Act is a limitation on the way the EPA regulates certain pollutant discharges - thereby granting the circuit court jurisdiction. The split panel decided that the effect of the rule is to impact permitting requirement, thereby affecting the granting and denying of permits, which, under the Sixth Circuit’s 2009 ruling in National Cotton Council v. EPA, the Circuit Court has jurisdiction to directly review. Judge Griffin, despite disagreeing with the court’s decision in Nation Cotton, sided with the majority and agreed that the court was bound.
The Sixth Circuit’s decision is particularly significant given the events in the Eleventh Circuit where Florida and 10 other states are seeking to overturn a Georgia district court’s finding that the appeals court is the proper venue for their challenge to the Clean Water Rule. The Eleventh Circuit postponed oral argument until after the Sixth Circuit had decided the question of venue.
The Sixth Circuit decision was over the dissent of Judge Keith, who disagreed that National Cotton gave the Sixth Circuit jurisdiction.