WASHINGTON, Feb. 29, 2016 - A wide array of farm and manufacturing groups have asked the 6th Circuit Court of Appeals to revisit its decision to decide “waters of the U.S.” challenges in that court.
In a petition filed today, the American Farm Bureau Federation and National Association of Manufacturers – along with more than a dozen other groups – requested rehearing en banc, meaning all the court’s judges.
A three judge appellate court panel court ruled Feb. 22 that the consolidated challenges should be decided in the circuit court, not by scattered district courts, as argued by the federal government under its interpretation of legal precedent and the Clean Water Act. But both industry and environmental groups contend that jurisdiction over the matter properly belongs in the district courts.
“This case thus cries out for en banc review,” AFBF and NAM said in their petition. “There is a ‘circuit split,’ the question presented is ‘an important federal question,’ and a ‘number of judges on the court have come to doubt the validity of [its] own precedent.’”
The court’s “splintered 1-1-1 jurisdictional decision (on Feb. 22) raises more questions than it answers, casting doubt and uncertainty on the future course of all of those cases,” the groups said.
Another reason for granting rehearing, AFBF and NAM said, is because there is a good chance the ruling will eventually be overturned.
“It would not be a wise use of party or judicial resources to litigate the merits in this court now, given the substantial risk that a judgment on the merits will later be vacated for want of jurisdiction, sending everyone down to start over from scratch before the district courts,” they said.
In its decision, Circuit Judge David W. McKeague said the court was bound by a decision issued by the 6th Circuit in 2009, National Cotton Council (NCC) v. EPA, which determined that EPA illegally exempted pesticide applications from permit requirements under the Clean Water Act's National Pollutant Discharge Elimination System (NPDES).
But “even Judge McKeague, writing the lead opinion, acknowledged that the government’s textual arguments are ‘not compelling’ and that petitioners’ arguments are ‘consonant with the plain language of (Clean Water Act Section) 1369(b)(1),” the groups argue.
McKeague eschewed the text of the CWA and – as McKeague put it – used a “functional approach rather than a technical approach,” AFBF and NAM said.
McKeague reasoned that because the WOTUS rule “expands regulatory authority and impacts the granting and denying of permits,” the circuit court is the proper place to decide its legality.
“Because the jurisdictional question implicates a wide body of precedent interpreting a complex statutory scheme, petitioners (who anticipate that additional petitions for en banc review will be filed by other movants) request full re-briefing of, and en banc oral argument on, the question presented,” the groups said.
The groups filing the petition today are: American Farm Bureau Federation; American Forest & Paper Association; American Petroleum Institute; American Road & Transportation Builders Association; Greater Houston Builders Association; Leading Builders of America; Matagorda County Farm Bureau; National Alliance of Forest Owners; National Association of Home Builders; National Association of Manufacturers; National Association of Realtors; NationalCattlemen’s Beef Association; National Corn Growers Association; National Mining Association; National Pork Producers Council; National Stone, Sand, and Gravel Association; Public Lands Council; Texas Farm Bureau; and U.S. Poultry & Egg Association.
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