Murray Energy Corp. v. U.S. Dep't of Def. (In re U.S. Dep't of Def.)

817 F.3d 261

In re UNITED STATES DEPARTMENT OF DEFENSE and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY FINAL RULE: CLEAN WATER RULE: DEFINITION OF "WATERS OF the UNITED STATES," 80 Fed.Reg. 37,054 (June 29, 2015).

Murray Energy Corporation (15–3751); State of Ohio, et al. (15–3799); National Wildlife Federation (15–3817); Natural Resources Defense Council, Inc. (15–3820); State Of Oklahoma (15–3822); Chamber Of Commerce of the United States of America, et al. (15–3823); State of North Dakota, et al. (15–3831); Waterkeeper Alliance Inc., et al. (15–3837); Puget Soundkeeper Alliance, et al. (15–3839); American Farm Bureau Federation, et al. (15–3850); State of Texas, et al. (15–3853); Utility Water Act Group (15–3858); Southeastern Legal Foundation, Inc., et al. (15–3885); State of Georgia, et al. (15–3887); One Hundred Miles, et al. (15–3948); Southeast Stormwater Association, Inc., et al. (15–4159); Michigan Farm Bureau (15–4162); Washington Cattlemen's Association (15–4188) ; Association Of American Railroads, et al. (15–4211); Texas Alliance For Responsible Growth, Environment, And Transportation (15–4234); American Exploration & Mining Association (15–4305); Arizona Mining Association, et al. (15–4404), Petitioners,

v.United States Department of Defense, Department of the Army Corps of Engineers And united States Environmental Protection Agency, et al., Respondents.

Nos. 15–3751

15–3799

15–3817

15–3820

15–3822

15–3823

15–3831

15–3837

15–3839

15–3850

15–3853

15–3858

15–3885

15–3887

15–3948

15–4159

15–4162

15–4188

15–4211

15–4234

15–4305

15–4404.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 8, 2015.

Decided and Filed: Feb. 22, 2016.

Rehearing En Banc Denied April 21, 2016.^*

ARGUED:Eric E. Murphy, Office of the Ohio Attorney General, Columbus, Ohio, for Petitioners. Martha C. Mann, United States Department of Justice, Washington, D.C., for Respondents.

Before: KEITH, McKEAGUE, and GRIFFIN, Circuit Judges.

McKEAGUE, J., delivered the opinion in which GRIFFIN, J., joined in the result. GRIFFIN, J. (pp. 275–83), delivered a separate opinion concurring in the judgment. KEITH, J. (pp. 283–84), delivered a separate dissenting opinion.

OPINION

McKEAGUE, Circuit Judge.

This multi-circuit case consists of numerous consolidated petitions challenging the validity of the "Clean Water Rule" recently published by the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency ("the Agencies"). The Clean Water Rule is intended to clarify the scope of "the waters of the United States" subject to protection under the Clean Water Act. The Act provides that certain specified actions of the EPA Administrator are reviewable directly in the U.S. Circuit Courts of Appeals. Because of uncertainty about whether the Agencies' adoption of the Clean Water Rule is among these specified actions, parties challenging the Rule have filed petitions in both district courts and circuit courts across the country. Many of the petitions have been transferred to the Sixth Circuit for consolidation in this action. Many of the petitioners and other parties now move to dismiss the very petitions they filed invoking this court's jurisdiction, contending this court lacks jurisdiction to review the Clean Water Rule.

The movants find support for their position in the language of the Clean Water Act's judicial review provisions, which purport to define circuit court jurisdiction specifically and narrowly. Over the last 35 years, however, courts, including the Supreme Court and the Sixth Circuit, have favored a "functional" approach over a "formalistic" one in construing these provisions. These precedents support the Agencies' position that this court does have jurisdiction. The district courts that have confronted the jurisdictional question in this litigation have arrived at conflicting answers.¹ For the reasons that follow I conclude that Congress's manifest purposes are best fulfilled by our exercise of jurisdiction to review the instant petitions for review of the Clean Water Rule.

I. BACKGROUND

Petitioners in these various actions, transferred to and consolidated in this court by the Judicial Panel on Multi–District Litigation for handling as a multi-circuit case, challenge the validity of a Final Rule adopted by respondents U.S. Army Corps of Engineers and U.S. Environmental Protection Agency, "the Clean Water Rule." 80 Fed.Reg. 37,054 (June 29, 2015). The Clean Water Rule clarifies the definition of "waters of the United States," as used in the Clean Water Act, 33 U.S.C. § 1251 et seq.,"through increased use of bright-line boundaries" to make "the process of identifying waters protected under the Clean Water Act easier to understand, more predictable and consistent with the law and peer reviewed science, while protecting the streams and wetlands that form the foundation of our nation's water resources." 80 Fed.Reg. at 37,055. Petitioners contend that the definitional changes effect an expansion of respondent Agencies' regulatory jurisdiction and dramatically alter the existing balance of federal-state collaboration in restoring and maintaining the integrity of the nation's waters. Petitioners also contend the new bright-line boundaries used to determine which tributaries and waters adjacent to navigable waters have a "significant nexus" to waters protected under the Act are not consistent with the law as defined by the Supreme Court, and were adopted by a process not in conformity with the rulemaking requirements of the Administrative Procedures Act ("APA"). The Agencies maintain that the requirements of the APA were met and that the Rule is a proper exercise of their authority under the Clean Water Act.

The Rule became effective on August 28, 2015. On October 9, 2015, however, we issued a nationwide stay of the Rule pending further proceedings in this action. In re EPA and Dep't of Def. Final Rule, 803 F.3d 804 (6th Cir.2015). We found that petitioners had demonstrated a substantial possibility of success on the merits of their claims and that the balance of harms militated in favor of preserving the status quo pending judicial review.

Meanwhile, eight motions to dismiss have been filed by numerous petitioners and intervenors. The motions assert that judicial review is properly had in the district courts, not here. They contend the instant challenges to the Clean Water Rule do not come within the judicial review provisions of the Clean Water Act, 33 U.S.C. § 1369(b)(1).

Section 1369(b)(1) identifies seven kinds of action by the EPA Administrator that are reviewable directly in the circuit courts. Only two of the seven kinds of action listed in § 1369(b)(1) are implicated here, subsections (E) and (F). In its entirety, § 1369(b)(1) provides as follows:

(1) Review of the Administrator's action

(A) in promulgating any standard of performance under section 1316 of this title,

(B) in making any determination pursuant to section 1316(b)(1)(C) of this title,

(C) in promulgating any effluent standard, prohibition, or pretreatment standard under section 1317 of this title,

(D) in making any determination as to a State permit program submitted under section 1342(b) of this title,

(E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title,

(F) in issuing or denying any permit under section 1342 of this title, and

(G) in promulgating any individual control strategy under section 1314(l ) of this title,

may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts business which is directly affected by such action upon application by such person.

Any such application shall be made within 120 days from the date of such determination, approval, promulgation, issuance or denial, or after such date only if such application is based solely on grounds which arose after such 120th day.

33 U.S.C. § 1369(b)(1).

Movants contend the EPA's and the Corps' adoption and promulgation of the Clean Water Rule is not action of the Administrator "in issuing or promulgating any effluent limitation or other limitation" or "in issuing or denying any permit" under § 1369(b)(1)(E) or (F). They contend the Clean Water Rule is simply a definitional rule and that neither the statutory language nor the legislative history evidences congressional intent to authorize direct review of such action in the circuit courts.

II. ANALYSIS

A. General Standards

The question of subject matter jurisdiction is a question of law the court addresses de novo. Iowa League of Cities v. E.P.A., 711 F.3d 844, 861 (8th Cir.2013). That is, the Agencies' interpretation of the Clean Water Act is entitled to no deference in this regard. Friends of the Everglades v. U.S. E.P.A., 699 F.3d 1280, 1285 (11th Cir.2012).

Federal courts are courts of limited jurisdiction and have subject matter jurisdiction only as authorized by the Constitution and by Congress. Id. at 1289. Here, the court's authority to conduct direct review of the Agencies' challenged action, must be found, if at all, in the Clean Water Act, 33 U.S.C. § 1369(b)(1).

Id. at 1285 (recognizing availability of direct circuit court review only over those actions specifically enumerated in § 1369(b)(1) ). Not all actions taken under the Clean Water Act are directly reviewable in the circuit courts. Nat'l Cotton Council of America v. U.S. E.P.A., 553 F.3d 927, 933 (6th Cir.2009). Where review is available under § 1369(b)(1), "it is the exclusive means of challenging actions covered by the statute." Decker v. Nw. Envtl. Def. Ctr., ––– U.S. ––––, 133 S.Ct. 1326, 1334, 185 L.Ed.2d 447 (2013). Matters not reviewable under § 1369(b)(1) may be actionable in the district courts by other means. See id. (recognizing availability of private enforcement action under 33 U.S.C. § 1365 ); Narragansett Elec. Co. v. U.S. E.P.A., 407 F.3d 1, 8 (1st Cir.2005) (recognizing availability of judicial review in district court under...