This post should not be construed as legal advice
On Oct. 9, 2015, a panel of three judges with the U.S. Court of Appeals for the Sixth Circuit issued a nationwide injunction against the Environmental Protection Agency (EPA) from enforcing the new “Waters of the U.S.” (WOTUS) rule. This injunction is broader than the injunction issued in late August by a federal district judge in North Dakota which only impacted 13 states. The nationwide injunction means the new WOTUS rule will not go into effect in Maryland. To learn more about the WOTUS rule, see WOTUS All the Fuss About? by Shannon L. Ferrell and Tiffany Lashmet.
Let’s focus on the top 5 takeaway points from the decision:
1. Granting the injunction maintains the status quo. As the panel highlights, injunctions are typically granted in order to preserve the status quos while the court decides the conclusiveness of pending legal issues. The WOTUS rule if implemented would impact how states currently regulate many of the new waters which now fall under the WOTUS rule. This creates a ripple in the balance of power shared by the states and the federal government in limiting water pollution. To maintain status quo the court thought this meant returning federal regulation to the pre-WOTUS status.
2. States demonstrated a substantial probability of success on the merits of the claim. The final WOTUS rule included distance requirements not present in the Supreme Court’s Rappanos decision or in the proposed WOTUS rule published for public comment. To be valid, this distance requirement would have to be a logical outgrowth of the proposed rule. EPA up to this point has failed to establish that the public had specific notice of the distance-based limitations, or produce scientific evidence to substantiate the distance requirements.
3. The court found neither party would suffer an immediate irreparable harm. To be granted an injunction, the party seeking the injunction must typically show immediate irreparable harm. The court found neither party would suffer an immediate irreparable harm. But according to the court, “A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new rule and whether they will survive legal testing” (*6).
4. The still undecided jurisdiction question. The states have also filed a motion that the 6th Circuit Court of Appeals lacks jurisdiction to hear this decision. The Clean Water Act grants federal court of appeals limited jurisdiction to hear disputes of original jurisdiction (original jurisdiction means the power to hear a case for the first time, such as the power granted to district courts). The states argue that the 6th Circuit does not have original jurisdiction and the dispute should be sent down to the appropriate federal district court. If the 6th Circuit were to agree with the states, then this nationwide injunction would be lifted. We need to pay attention to how the 6th Circuit decides the jurisdiction issue.
5. The dissent thinks the majority put the cart before the horse. One judge dissented, finding the court should not grant an injunction before first determining if the court has jurisdiction. Until that issue is resolved, in this judge’s mind, the court should not grant an injunction.
As you can see, the legality of the new WOTUS rule has not been determined. This nationwide injunction may not last long and could disappear if the court determines it does not have jurisdiction and sends the case down to the appropriate district court. If the injunction does go away, then the rule would remain enforceable in 37 states (remember 13 states received an injunction from a federal district court in North Dakota over the summer). If the 6th Circuit does have jurisdiction, then the injunction would remain in place.
The takeaway message from the decision is stay tuned. The legality of the new WOTUS rule will continue until we get a decision on the merits (did EPA exceed its authority granted under the Clean Water Act? or did it fail to follow the proper process in adopting the WOTUS rule?). As much as we would all like a conclusion to this issue, it is not going away any time soon.
In re Environmental Protection Agency, 2015 WL 5893814, Nos. 15–3799, 15–3887, 15–3822, 15–3853 (6th Cir. Oct. 9, 2015).