The recent decision by the Court of Appeals for the Sixth Circuit on the Environmental Protection Agency (EPA) and the Corps of Engineers' regulation defining “waters of the United States” (WOTUS) is something of an oddity.

In court cases, the issue of jurisdiction is fundamental. Without it, a court has no authority to decide any issue in a case. When there is a question of jurisdiction, a court will typically decide that first, as a means of conserving judicial resources. There is little point to decide the subject matter of a case if the court lacks jurisdiction to actually make that decision.

The Clean Water Act confers jurisdiction of some issue directly on the Courts of Appeal. However, it is not transparently clear that the WOTUS rule falls within that jurisdiction. This explains why a North Dakota federal district court ruled on the same matter the Sixth Circuit considered.

The Sixth Circuit took the unusual step of issuing a stay in the matter before it heard argument on whether it had jurisdiction in the case. The majority of the three-judge panel appeared to feel that because there were no compelling arguments showing any harm by preventing the WOTUS rule from going into force, issuing the stay was the simplest way of preserving the status quo.

The third judge dissented over the matter of the court issuing a potentially jurisdictionally invalid decision and did not reach the merits of the arguments of the two parties to the case.

Whatever the outcome, it is likely that any decision will be appealed and it will be up to the U.S. Supreme Court to decide the ultimate answer to the questions presented. The Court could decline to decide the real issue, however, and send it back on some procedural issue, such as a finding that the EPA violated the timelines of the rulemaking process, which could essentially restart the entire process.

And this is why appellate cases may take years to reach a final decision.

Source: washingtonpost.com, “Sixth Circuit puts controversial ‘waters of the United States' (WOTUS) rule on hold,” Jonathan H. Alder, October 9, 2015