Latest on the Clean Water Rule Litigation

What’s the latest on the Clean Water Rule litigation?  Jon Devine of NRDC is helping us keep it all straight. Read his update below.
As a starting point, there is a lack of agreement amongst the parties and some uncertainty about whether challenges to the rule are supposed to be filed in the first level of the federal courts (“district courts”) or the intermediate level (“circuit courts”).  Given that, virtually all of the parties challenging the rule have filed both in the circuits and the district courts.  The result is that there have been 16 circuit court challenges filed in 8 courts, and 15 district court challenges filed in 13 courts.

So, what has happened?

All of the challenges filed in circuit courts were consolidated  — as federal rules require — in the U.S. Court of Appeals for the 6th Circuit (which was selected by lottery).  The district court cases followed varied paths.  Some were put on hold while the government asked a special federal body — the Panel on Multidistrict Litigation — to transfer and consolidate the cases in a single location.  Others were dismissed or requests for stays of the rule were rejected on the ground that the 6th Circuit is the only court with authority to hear the cases.  One — in the District of North Dakota — granted a stay of the rule until the case can be fully heard; that stay applied to the 13 states that sued in that court.

Since the North Dakota stay, a few major things happened.  First, the states that filed in the Southern District of Georgia have appealed that court’s decision that it lacks authority to decide the case; that case is pending in the U.S. Court of Appeals for the Eleventh Circuit.  Second, after challengers sought a stay from the Sixth Circuit and also asked that court to dismiss the cases because they believe the challenges belong in the district courts, the Sixth Circuit ordered briefing on both a stay and its authority to hear the case, in that order.  Unfortunately, the 6th Circuit decided a week and a half ago that a stay is appropriate, at least until it resolves the question of which court should hear the cases.  Third, the Multidistrict Litigation Panel rejected the government’s request to transfer and consolidate all the district court cases, leaving those to proceed forward.

What comes next?

This is very difficult to predict.  Some parties may challenge the 6th Circuit’s stay as inappropriate, especially prior to ruling on its authority to hear the case in the first instance.  The Sixth Circuit will have a hearing about the authority question on December 8th, after which it could decide it has the authority to hear the case and — barring some other challenge — will presumably keep the stay of the rule in place until it ultimately decides the actual legal issues in the case.  If the 6th Cir. decides it’s the right place, I expect at least some of the district courts will either indefinitely postpone their cases or dismiss them, but some probably won’t.  The court in North Dakota, for instance, has already determined that the district courts should have these cases, so I expect that case will continue on.  Also, the Eleventh Circuit could decide that the Georgia case was wrongly decided and that the district courts have authority to hear the case, in which case at least that Georgia litigation will continue.  If the Sixth and Eleventh Circuits disagree about which level of the courts is the right one for these challenges, I would not be surprised if the government or some challengers, or both, ask the Supreme Court to resolve the question.

At least while the stay is in place, the agencies can’t enforce the rule, so jurisdictional determinations and enforcement cases for the time being will need to be based on the pre-rule guidelines from the Bush administration.  However, I can’t think of any reason that the agencies couldn’t continue to prepare for the rule to be enforced if/when it is upheld in court.

What’s the big picture?

In light of all of this, the major takeaway — in my opinion — is that we’re a long way from getting to final resolution of the legal issues in the cases.  For now, we’ve had a lot of preliminary wranglings, but only a couple of them have considered the core legal issues, and even those were tangential and based on a less-than-complete record and less-than-robust briefing.  This is a long way from lost.  When the smoke clears, I remain confident that the rule’s central provisions — those based on the enormous scientific record and grounded in the Supreme Court’s decisions — will be upheld.

Futhermore, EPA officials have also expressed their confidence in the science and legal foundation of the rule, and are working with the Corps in the interim to make sure the connectivity science and the transparency/jd/NJD posting improvements agreed to will move forward.  This means we should be able to to better document jds/njds under the pre-rule scenario and hopefully hold the Corps and EPA more accountable for better determinations.