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6th Circuit to Review |EPA Clean Water Rule

(CN) - A highly divided Sixth Circuit ruled Monday that it has jurisdiction to review the EPA's Clean Water Rule to clarify what waters are subject to federal protection.

"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," U.S. Circuit Judge David McKeague wrote for the panel's majority.

Many parties challenging the rule have filed petitions in district and circuit courts around the country. They oppose the consolidation and transfer of these actions to the Sixth Circuit, where the EPA seeks to litigate the case.

"Movants have failed to identify any particular circumstances or practical considerations that would justify holding that adjudication of the instant petitions for judicial review in the various district courts would better serve Congress's purposes," McKeague said.

U.S. Circuit Judge Richard Griffin concurred with McKeague, but only because he is required to follow binding precedent, National Cotton Council of America v. EPA, which he said he does not believe was correctly decided.

U.S. Circuit Judge Damon Keith dissented, agreeing with Griffin's analysis, but not his reading of National Cotton.

The EPA's rule defines "Waters of the United States" under the Clean Water Act, asserting federal jurisdiction over streams, wetlands and other water bodies previously considered to be under the states' jurisdiction.

The EPA cited the need for clean drinking water and clean water as an economic driver as the impetus for its new rule, and Supreme Court rulings in 2001 and 2006 in which justices disagreed about which waters were covered by the Act.

"About 117 million Americans - one in three people - get drinking water from streams that lacked clear protection before the Clean Water Rule," the agency said in a May 27 statement about the new rule. "The health of our rivers, lakes, bays, and coastal waters are impacted by the streams and wetlands where they begin."

Thirty-one states filed five lawsuits in federal courts throughout the country, claiming the rule trampled state sovereignty.

In their letter, essentially asking for a time out until a judicial review of the rule can take place, the attorneys general said the "increase in EPA's and ACOE's jurisdiction comes at the direct expense of states - which previously had exclusive jurisdiction over state waters."

"Such action exceeds the statutory authority of Congress in enacting the Clean Water Act under the Commerce Clause and infringes upon the states' rights under the Tenth Amendment," their letter said.

The same panel granted a stay of the rule in October last year.

The states' cases have now been consolidated with cases filed by mining and energy corporations, environmental groups, commercial lobbying organizations, farming groups, and railroads.

While the Clean Water Rule is definitional, it indirectly impacts the agency's regulatory scheme, granting the appeals court jurisdiction on direct review. McKeague said precedent "demonstrates a strong preference for construing Congress's provision for direct circuit court review of agency action by a practical, functional approach rather than a technical approach. A holding that we have jurisdiction to hear the instant petitions for review of the Clean Water Rule is consistent with this understanding."

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