Today a splintered three-judge panel of the U.S. Court of Appeals for the 6th Circuit concluded that it has jurisdiction to review challenges to the controversial “waters of the United States” (WOTUS) rule.  This regulation, issued by the Environmental Protection Agency and the Army Corps of Engineers, seeks to clarify and expand the agencies’ regulatory jurisdiction under the Clean Water Act. The rule is a response to two Supreme Court decisions holding that the EPA and Army Corps had asserted unduly broad regulatory authority; it is now subject to more than 20 separate challenges filed by numerous states and interest groups.

In In re: U.S. Department of Defense and U.S. Environmental Protection Agency Final Rule, the 6th Circuit rejected arguments that proper jurisdiction to review challenges to the WOTUS rule lies in federal district courts. Instead, two of the three judges on the panel concluded, applicable 6th Circuit precedent provided the 6th Circuit jurisdiction to hear the consolidated challenges to the WOTUS rule. Given the 6th Circuit’s prior decision to stay the rule, pending resolution of the jurisdictional challenge, this would seem to indicate that things look good for those challenging the rule for exceeding the scope of the CWA or not being a “logical outgrowth” of the proposed rule published in the Federal Register.

Judge David W. McKeague, who announced the opinion of the court, concluded that the 6th Circuit has jurisdiction to hear the challenges under either 33 U.S.C. § 1369(b)(1)(E) or (F). While acknowledging that the WOTUS rule does not fit neatly into the categories for which § 1369 provides for circuit court jurisdiction, McKeague concluded that these provisions have been given expansive interpretations by the courts, sufficient to provide for jurisdiction.

Judge Richard Allen Griffin concurred in the result. While Griffin concluded that neither statutory provision provided for jurisdiction, he nonetheless concluded that the court was obligated to conclude that there is jurisdiction under § 1369(b)(1)(F) given the 6th Circuit’s decision in National Cotton Council of America v. U.S. EPA, in which a prior panel had held that the court has jurisdiction over any regulation “governing” permits. As Griffin explained, while there would be no jurisdiction under a “plain text reading” of the statute, he concluded he was “constrained by our court’s precedent holding that ‘issuing or denying any permit’ means more than just that.”

Senior Judge Damon J. Keith dissented, arguing that the relevant CWA provisions do not provide for jurisdiction to challenge the WOTUS rule in a circuit court, and that the National Cotton Council decision should not be read so broadly as to provide for jurisdiction here.

The underlying jurisdictional question here is interesting. As a policy matter, a facial challenge to the WOTUS rule raises precisely the sort of issue that would often be appropriate for resolution in a circuit court. The underlying question is purely legal — whether the rule comports with the CWA — and there is value to having this sort of question resolved expeditiously (and for the nation as a whole) so that there is consistent application of the CWA’s requirements throughout the country. But while that may make sense, as a policy matter, that’s not the line that the text of the CWA draws.

33 U.S.C. § 1369(b)(1) only provides for circuit court jurisdiction over a handful of types of challenges to EPA actions under the CWA. Jurisdiction over all other challenges only lies in district courts. 33 U.S.C. § 1369(b)(1)(E) and (F) only provide for judicial review in circuit courts of actions “approving or promulgating any effluent limitation or other limitation under sections 1311, 1312, 1316, or 1345” and “issuing or denying any permit under section 1342.”  As the WOTUS rule is neither of these, Judges Griffin and Keith are correct that the text of the CWA does not provide for circuit court jurisdiction over this case. Yet as Judges McKeague and Griffin note, the 6th Circuit has interpreted these provisions quite expansively and, at least under applicable circuit court precedent, there is an argument for jurisdiction.

Barring an effort to seek review of this decision — either en banc or with the Supreme Court — today’s decision means the 6th Circuit will hear the merits of the challenge to the WOTUS rule. As noted above, that could mean the WOTUS rule is in trouble, but we’ll have to see.