Dave Dickey
The fractured Cincinnati-based Sixth Circuit Court of Appeals ruled in late February that it will, on the behalf of the country, take up the challenge to the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers’ oh-so-controversial Waters of the United States rule.
Yet, the court was anything but definitive on why it should be the place for a legal slug fest over whether the EPA has overreached in determining just what waters it has jurisdiction over.
The court’s three-judge panel could not come to anything close to a united front in handing down its verdict to move forward.
The lead opinion, written by Judge David McKeague, used some rather arcane language in the Clean Water Act to justify the Court of Appeals’ jurisdiction of the WOTUS rule.
In doing so, McKeague certainly went beyond the plain language in Clean Water Act, laying out the court’s judicial review limitations.
McKeague largely pointed to a pair of prior decisions that similarly dealt with appellate review of the EPA’s actions not directly covered by the Clean Water Act – the 1977 Supreme Court ruling E.I Dupont de Nemours Co. v. Train 430 U.S.112 and the Sixth Circuit’s own ruling National Cotton Council v. EPA 553 F.3d. 927.
McKeague used the cases to conclude:
“…recognition of our authority and our duty to directly review the Clean Water Rule in this multi-circuit case is in all respects consonant with the governing case law and in furtherance of Congress’s purposes. Conversely, to rule that we lack jurisdiction would be to contravene prevailing case law and frustrate congressional purposes without substantial justification. We hold that jurisdiction properly laid in this court.”
That’s fine and dandy until you delve into Justice Richard Allen Griffin’s concurring opinion, which essentially found no agreement with McKeague’s tangled logic. Instead, he felt his hands were tied by the National Cotton Council ruling:
“Although, in my view, the holding in National Cotton is incorrect, this panel is without authority to overrule it. It is a well-established rule in this Circuit that a panel of this court may not overrule a prior published opinion of our court absent en banc review or an intervening and binding change in the state of the law… In sum, I am compelled to find jurisdiction is proper pursuant to National Cotton. Absent National Cotton, I would dismiss the petitions for lack of jurisdiction.”
Further muddying the legal waters, Justice Damon Keith in his dissent not only suggested McKeague was wrong to take up the case, but that the National Cotton Council case was not binding:
“I am reluctant to read National Cotton in a way that expands the jurisdictional reach of subsection (F) in an all-encompassing, limitless fashion.”
The ink was barely dry on McKeague’s opinion before petitioners appealed for an en banc hearing before the full Sixth Circuit which could overturn the ruling.
Given the fractured nature of the ruling — after all it could be argued the court split 1-1-1 — I expect that en banc hearing to happen just as soon as it can be squeezed on the docket. Other federal district courts are closely watching.
Late last month, the Oklahoma Federal District Court dismissed a WOTUS challenge, suggesting it did not have jurisdiction given what was going on at the Sixth Circuit.
And the Eleventh Circuit will soon take up a challenge on whether the WOTUS case belongs not in the appellate but district court.
Should the Eleventh Circuit rule the case is district court business it likely will be up to the U.S. Supreme Court to decide which court has WOTUS jurisdiction.
Not to forget that there is a WOTUS case already pending before North Dakota Federal District Judge Ralph Erickson, who may take up the case at his pleasure regardless of the legal hand wringing going on over at the Sixth Circuit.
Tangled to be sure.
Meanwhile, the Sixth Circuit’s temporary injunction against WOTUS from going into effect stands for now.
This case is not going away anytime soon, and it will likely still be around for the next administration to ponder.
One must wonder whether any of the Republican or Democrat presidential candidates – including current front runners Donald Trump and Hillary Clinton – would consider cleaning house over at the EPA and handing administrator Gina McCarthy what most farmers would suggest is a well-deserved pink slip.
A previous version of this piece had a different headline. It has since been updated to better reflect the opinion.
About Dave Dickey
Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For the past 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Big Ag Watch covers agriculture and related issues including politics, government, environment and labor. Email him at dave.dickey@investigatemidwest.org.
This column reflects the writer’s own opinions and not those of Big Ag Watch.