Sixth Circuit Rules it has Jurisdiction over “Waters of the United States” Rule; Denies Rehearing En Banc
On 7/23/2015, the U.S. Chamber of Commerce, along with the National Federation of Independent Business, Portland Cement Association, State Chamber of Oklahoma and Tulsa Regional Chamber, filed a lawsuit against the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers seeking to overturn a regulation often referred to as the “Waters of the U.S.” (WOTUS) rule, which would dramatically expand the areas regulated under the Clean Water Act.
The lawsuit alleges that the EPA’s WOTUS rule disrupts the careful balance Congress set forth in the Clean Water Act, which gives the EPA and the Army Corps of Engineers the authority to regulate interstate navigable waters but specifically preserves the primary role of the States in planning the development and use of local land and water resources. The lawsuit also alleges that the Agencies failed to comply with their statutory obligation to assess the economic harm numerous industries and small businesses will suffer because of the regulation.
James P. McCann, John J. Carwile, and Mary E. Kindelt of McDonald, McCann, Metcalf & Carwile, LLP served as co-counsel for the U.S. Chamber, et al. in this case, as well as Michael H. Park, William S. Consovoy, Thomas R. McCarthy, and J. Michael Connolly of Consovoy McCarthy Park PLLC.
The case is docketed as In re: Murray Energy Corporation v. EPA, et al.
In October 2015, a divided panel of the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the WOTUS rule.
In February 2016, the Sixth Circuit determined it has jurisdiction under the Clean Water Act to entertain petitions for review to challenge the rule. The ruling was fractured, with three separate opinions: an opinion for the court, a concurring opinion, and a dissenting opinion. The stay remains in effect.
In April 2016, the Sixth Circuit denied a petition for rehearing en banc.
U.S. Chamber petition for review filed 7/29/2015. Transferred to the Sixth Circuit.
Cause for motion to dismiss argued 12/8/2015.
Opinion issued, holding that jurisdiction lies with Sixth Circuit. All pending motions to dismiss are denied.
U.S. Chamber opening brief on the merits filed 11/1/2016.