October 30, 2015

Appeals Court to hear Clean Water rule challenge

By M. Reed Hopper Senior Attorney

Readers of this blog will know that PLF is challenging the Army Corps and EPA rule redefining “waters of the United States.”  Two courts have issued a stay of the rule concluding the rule likely violates both statutory and constitutional law, as we have argued.  But the courts have yet to decide the proper venue for considering the challenge.  10 suits have been filed in the federal district courts while about 15 have been filed in the Circuit Courts of Appeals.

The confusion derives from a provision in the Clean Water Act that says certain types of rules must be challenged directly in the Courts of Appeals rather than in a federal district court. We believe that provision does not apply in this case and our suit should be heard in the district court, but the government is pushing for review in the 6th Circuit Court of Appeals where the appeals court challenges have been consolidated.

On December 8, the 6th Circuit (in Ohio) will hear oral arguments on where the suits should be litigated.  The 11th Circuit has also been asked to consider the issue but that court will not hold oral argument until sometime in February, 2016.

Although PLF filed its original challenge to the rule in the District Court of Minnesota, PLF recently filed a petition for review of the rule in the 8th Circuit Court of Appeals.  That court transferred our suit to the 6th Circuit this week.  All parties are anxious to get the venue issue resolved so we can litigate the rule on the merits.  It is likely the 6th Circuit will issue an opinion on the matter before the end of the year.

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