On February 22, 2016, a divided Sixth Circuit Court of Appeals ruled that it has jurisdiction to hear suits over the joint U.S. Environmental Protection Agency and U.S. Army Corps of Engineers’ controversial amendment to the definition of “waters of the United States.” Murray Energy Corp. v. US Department of Defense et al., Slip op., No. 15-3751 (6th Cir., Feb. 22, 2016) (and related cases).
The definition of “waters of the United States” establishes the bounds of federal jurisdiction under the Clean Water Act, which has been in a state of uncertainty since the U.S. Supreme Court's plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006). Over a dozen challenges were filed in federal district and appellate courts, owing to uncertainty over which courts (district or appellate) CWA § 509 vests with jurisdiction. The Federal Panel on Multidistrict Litigation consolidated appeals filed in the appellate courts in the Sixth Circuit under the automatic, randomly-selected lottery described in 28 U.S.C. § 2112(a)(3), but declined to consolidate the district court cases.
It is widely expected that the legality of the new “waters of the United States” definition will ultimately be decided by the US Supreme Court. In the meantime, there is the potential that litigation will proceed in both the Sixth Circuit and various district courts in parallel. The potential for a patchwork of conflicting opinions in various jurisdictions will ensure the scope of federal authority under the CWA remains in limbo for the foreseeable future.