August 18, 2016

Eleventh Circuit takes a pass on Clean Water Rule challenge

By M. Reed Hopper Senior Attorney

We have noted here and here that the question about which court has jurisdiction to hear the many challenges to the Clean Water Rule, that redefines “waters of the United States” subject to federal control under the Clean Water Act, is still unresolved. The Clean Water Act states that such challenges should be brought in the federal district courts, and not in the courts of appeals. However, the Sixth Circuit Court of Appeals has assumed jurisdiction in a highly controversial decision that will soon be appealed to the U.S. Supreme Court.

In addition to the Sixth Circuit, the Eleventh and Tenth Circuits have been asked to weigh in on the venue question. Yesterday, the Eleventh Circuit decided to defer to the Sixth Circuit so as not to duplicate judicial resources.  But the court did not decide whether the Act required the rule challenge to be heard in the district or appellate courts.  The Tenth Circuit has not issued an opinion yet.  The challenge to the rule will therefore proceed in the Sixth Circuit–at least for now.

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