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Federal Court stays Waters of U.S. Rule nationwide – decision may soon be overturned

The U.S. Court of Appeals for the Sixth Circuit, in a 2-1 decision, stayed the implementation of the “Clean Water Rule” (Waters of U.S. Rule) nationwide finding that the petitioners have a substantial likelihood of success to win the case. However, the court may also overturn itself in just a few weeks as it has yet to decide whether it has jurisdiction to hear the case. Without jurisdiction the court cannot stay the implementation of the rule pending completion of its review of the rule on the merits.

The Sixth Circuit is hearing four actions against the law (including Wisconsin’s) from around the country which have been transferred to and consolidated by the Judicial Panel on Multi-District Litigation for handling multi-circuit cases ( consolidation is generally done for efficiency purposes and to not have conflicting rulings on an issue with nationwide implications). The petitioners (the 18 states challenging the rule) contend that the court does not have subject matter jurisdiction (that the court does not have authority to hear the issues presented) to hear the case. However the petitioners also moved for a stay pending the ruling on subject matter jurisdiction. The court has to balance several interrelated considerations when granting a stay, the most important generally being whether or not the party requesting the stay is likely to win on the merits of the case.

The court states that while they understand that they ultimately may find they do not have jurisdiction to hear the case, they have no doubt of their authority to maintain the status quo “pending our receipt and careful consideration of briefing on the jurisdictional question.” Therefore the majority finds they have authority to issue the stay pending their decision on subject matter jurisdiction.

The majority explains that they believe the petitioners are likely to win on the merits for three major reasons. The first reason is that “it is far from clear” that the rule’s distance limitations on “adjacent waters,” and waters having a “significant nexus” to navigable waters are harmonious with the Supreme Court’s ruling in Rapanos v. United States. Second, the rulemaking process by which these limitations were set is “facially suspect.” The majority views these limitations as “vulnerable to attack as impermissibly ‘arbitrary or capricious’ under the [Administrative Procedure Act]” because no distance limitations were included in the proposed rule and therefore interested stakeholders did not have a chance to comment on the limitations during the rulemaking process. Third, the court says the “respondents [have not] identified specific scientific support substantiating the reasonableness of the bright-line standards they ultimately chose.”  The court also says that the status quo, and protection from uncertainty, will best be kept by issuance of the stay. Thus the majority found that the petitioners are likely to win on the merits.

The majority concluded that a stay “allows for a more deliberate determination whether this exercise of Executive power, enabled by Congress and explicated by the Supreme Court, is proper under the dictates of federal law.”

The dissenting judge stated that it was not prudent for the court to act before it determines that it has subject-matter jurisdiction.