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Eleventh Circuit Staying Out of WOTUS Fight, Disappointing Foes

In a blow to opponents of the controversial Clean Water Rule (CWR), a federal appeals court panel in Atlanta said it would be a "colossal waste of judicial resources" for it to get involved in the ongoing legal challenge to the rule, deferring the case to an appeals court in Cincinnati.

On Tuesday, a three-judge panel from the Eleventh Circuit Court of Appeals in Atlanta ordered that an appeal by foes of the CWR be held in abeyance pending a decision by the Sixth Circuit Court of Appeals in Cincinnati. The latter ordered a nationwide stay of the rule last October and has been preparing to hear the case (see Shale DailyOct. 9, 2015).

"If there were an exhibition hall for prudential restraint on the exercise of judicial authority, this case could be an exemplar in the duplicative litigation wing," Chief Judge Ed Carnes, Circuit Judge Jill Pryor and District Judge Danny Reeves wrote in an eight-page opinion. "It would be a colossal waste of judicial resources for both this court and the Sixth Circuit to undertake to decide the same issues about the same rule presented by the same parties. And the Sixth Circuit is the obvious court to proceed to decision because it is significantly farther along the decisional path than we are."

The panel said the Sixth Circuit has already ruled that it has jurisdiction in the case and has been going through more than one million pages of documents in the administrative record to develop a workable briefing schedule.

"There is no good reason not to stay our hand in the present case until the Sixth Circuit decides the case before it," the panel said, later adding that because of the stay, "those opposing the rule are not being harmed by it in the interim. And, if the Sixth Circuit holds that the rule is invalid, that will end the matter, subject (as all panel decisions are) to the possibility of en banc and certiorari review."

The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corp of Engineers (USACE) jointly promulgated the CWR and unveiled it in May 2015 (see Shale DailyMay 27, 2015). The rule clarifies the definition of what constitutes Waters of the United States (WOTUS) and therefore what deserves protection under the Clean Water Act (CWA).

Opponents of the CWR called the rule invalid and filed a complaint in District Court for the Southern District of Georgia at the end of June 2015, then appealed to the Eleventh Circuit after losing in district court that August.

Attorneys general from 10 states -- Alabama, Florida, Georgia, Indiana, Kansas, Kentucky, South Carolina, Utah, West Virginia, Wisconsin -- plus the North Carolina Department of Environmental and Natural Resources are listed as plaintiffs in the appellate court case, State of Georgia et al v. Regina McCarthy et al (No. 15-14035-EE). The defendants in the case are the EPA, the USACE, EPA Administrator Gina McCarthy and Jo Ellen Darcy, assistant secretary of the Army (Civil Works) for the USACE.

Last October, the Justice Department began asking federal district courts across the nation to halt proceedings against the CWR (see Shale Daily, Oct. 14, 2015). The move was designed to give the Sixth Circuit more time to decide whether it has jurisdiction over a multitude of legal challenges to the rule.

President Obama vetoed a Congressional resolution disapproving of his administration's plan to rewrite the controversial CWR in January (see Shale DailyJan. 21). The resolution, SJ Res. 22, took issue with how the EPA and USACE redefined WOTUS. The resolution had passed the House of Representatives by a 253-166 vote on Jan. 13 and the Senate on a 53-44 vote last November (see Daily GPI, Jan. 13; Nov. 5, 2015).

Thirteen states, led by North Dakota, asked for and received a preliminary injunction against the rule last August, before the rule was to take effect (see Shale Daily, Aug. 28, 2015Aug. 11, 2015).

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