Industry Groups Seek en banc Review of Clean Water Act Ruling

Nineteen trade associations, including the American Petroleum Institute, National Association of Manufacturers, National Mining Association, American Forest & Paper Association, and National Association of Home Builders, have petitioned the Sixth Circuit Court of Appeals to rehear the Clean Water Rule en banc, meaning, with a full panel, as opposed to the three-judge panel that issued last week’s decision. See

The panel’s “splintered 1-1-1- jurisdictional decision raises more questions than it answers,” the appellants argue, “casting doubt and uncertainly on the future course” of the twenty-two petitions that are before the Sixth Circuit, as well as sixteen Administrative Procedure Act suits pending in district courts across the country. At the heart of the confusion is the import of National Cotton Council v. EPA, in which the Sixth Circuit interpreted the language of Section 509(b)(1)(F) of the Clean Water Act broadly, holding that the Circuit Courts of Appeal have exclusive jurisdiction to review rules regulating permitting procedures under the Clean Water Act. The petitioners note that there is a split of opinion among Circuit Courts on the scope of Section 509(b)(1)(F), with the Eleventh Circuit rejecting the National Cotton holding in its Friends of the Everglades opinion. “The split in the circuits is reflected in division among the panel,” the petitioners note, pointing out that Judges Griffin and Keith both agreed that National Cotton was wrongly decided, although they disagreed as to their obligation to be bound by its holding. Given the existence of a circuit split, the questions about the National Cotton holding raised by various judges, and the important federal question at issue, petitioners argue that this case “cries out for en banc review” so the court can overrule its jurisdictional holding in National Cotton.

Petitioners claim that “confusion and disruption” will result if the court doesn’t reconsider its decision, noting that more than a dozen APA suits have been held in abeyance pending the Sixth Circuit’s resolution of the jurisdictional question. Because the Sixth Circuit decided that it was bound by National Cotton while at the same time questioning its reasoning, petitioners allege that uncertainty will remain in those district courts in circuits not bound by National Cotton as to whether jurisdiction is properly with the district court or the circuit court. In addition, they argue that concerns for judicial economy weigh in favor of immediate reconsideration, before the court reaches the merits of the various petitions for review.

The petitioners have requested a full re-briefing of the case, with en banc oral argument.

A copy of the Petition for Rehearing En Banc is available HERE

National Cotton Council v. EPA, 553 F.3d 927 (6th Cir. 2009)

Friends of the Everglades v. EPA, 699 F.3d 1280 (11th Cir. 2012)

Kathy Milenkovski is an energy and environmental lawyer. She helps clients comply with complex state and federal regulatory programs and represents clients in litigation, appearing in administrative, state and federal courts.
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