Sixth Circuit issues WOTUS ruling

Earlier today, a panel of the United States Court of Appeals for the Sixth Circuit ruled that it—and not the federal district courts—has original jurisdiction to hear challenges to the EPA and the Corps’ “waters of the United States” rule.  (PLF attorneys represent a coalition of property rights and trade associations challenging the rule in federal district court in Minnesota and in the Eighth Circuit Court of Appeals).  Interestingly, although the vote on the outcome was 2-1, the vote on the reasons for the outcome was 1-1-1.  In Judge McKeague’s view, the court should take a “functional” approach to jurisdiction and hear the cases.  Judge Griffin agreed that the court has jurisdiction, but objected strongly to the functional approach.  In fact, Judge Griffin’s opinion makes clear that he would have voted against jurisdiction were it not for a Sixth Circuit precedent that he construed to be on point (although wrongly decided).  And in dissent, Judge Keith argued against both Judge McKeague’s functional approach as well as Judge Griffin’s reading of prior case law.

Takeaways:  (1) Almost certainly the state and industry petitioners will seek rehearing before the entire Sixth Circuit.  Such rehearing is oftentimes granted to allow appellate courts to reexamine prior precedent.  That would appear to be warranted by today’s decision, at least according to the concurrence and dissent.  (2) The Sixth Circuit’s stay of the WOTUS rule, issued last year, will continue in effect (if the court had determined that it did not have jurisdiction, the stay would have automatically ended).  (Note that Judge McKeague wrote the opinion granting the stay, and was joined by Judge Griffin. Perhaps then it’s not surprising that those two judges continue to believe that the court has jurisdiction).  (3) The case probably won’t advance to the merits any time soon if the petitioners seek en banc review of the today’s jurisdictional ruling.  (4) Today’s ruling has no binding effect on district court challenges to the WOTUS rule outside the Sixth Circuit’s jurisdiction.  Perhaps the most prominent of those is the ongoing challenge brought in federal district court in North Dakota by that state and twelve others.  The court in that case issued a preliminary injunction against the rule last August.