On Friday, October 9, 2015, the Sixth Circuit Court of Appeals in In re E.P.A., 2015 WL 5893814 (the Order), granted a nationwide stay of the Clean Water Rule (the Rule), which revises the Environmental Protection Agency’s (EPA) definition of “waters of the United States” under the Clean Water Act, 33 U.S.C. § 1251. The Court granted the stay pending determination of its subject-matter jurisdiction over the Rule. The Court’s decision preserves the status quo—a system of federal and state collaboration.
As the Court explained in its Order, the meaning of "waters of the United States" has “been clouded by uncertainty, in spite of (or exacerbated by) a series of Supreme Court decisions over the last thirty years.” The EPA and the United States Army Corps of Engineers (the Corps) promulgated the Rule to address this uncertainty. Following the publication of the proposed rule and a public notice-and-comment period, the final Rule went into effect on August 28, 2015. 80 FR 37054-01. Stakeholders challenged the Rule in various district courts across the nation, and a North Dakota court enjoined the implementation of the Rule in thirteen states. See North Dakota v. United States Envtl. Protection Agency, No. 3:15-cv-59 2015 WL 5060744 (D.N.D. Aug. 27, 2015).
In the Order, the Sixth Circuit addressed eighteen petitioner states’ (the Petitioner States) procedural and substantive challenges to the Clean Water Rule. Specifically, the Petitioner States asserted that in redefining the "waters of the United States", the EPA and the Corps exceeded their authority under the United States Supreme Court’s decision in Rapanos v. United States, 547 U.S. 715 (2006). The Petitioner States also argued that the agencies during the rulemaking process failed to comply with requirements of the Administrative Procedure Act because certain aspects of the final Rule were not logical outgrowths of the proposed Rule, and the agency-compiled record lacks specific scientific support for the final Rule.
Due to the the “sheer breadth of the ripple effects caused by the Rule’s definitional changes,” and because the Petitioner States showed a substantial possibility of succeeding on the merits of their claims, the Court stayed the Rule pending a decision as to whether jurisdiction to review the Rule resides in the district courts or the Court of Appeals. The Court posits that its decision will “temporarily silence the whirlwind of confusion” related to the new Rule, establish uniform national policy, and honor “the policy of cooperative federalism that informs the Clean Water Act.” The Sixth Circuit expects the parties to submit full briefing on the question of subject-matter jurisdiction within weeks.