By Whitney B. Grider
We all know the horror stories of huge companies dumping toxic waste into our beautiful waterways. The green sludge, the dead fish, the rotten smell. The next question many would have is: who regulates this waste so our waterways stay beautiful? What laws are in place to protect our water? Luckily, there is a federal regulation regarding this issue in place. It is called the Clean Water Act.[i] The Clean Water Act “made it unlawful to discharge any pollutant from a point source into navigable waters, unless a permit was obtained.”[ii] This Act is the premier federal law governing water pollution.[iii]
A rule has been established from the Clean Water Act that has created quite a stir among the courts. The Clean Water Rule “ensures that waters protected under the Clean Water Act are more precisely defined, more predictably determined, and easier for businesses and industry to understand.”[iv] Many states take issue with the idea of more federal regulation of waterways. On October 9th, 2015, the Sixth Circuit stayed implementation of the Clean Water Rule to determine if it actually has jurisdiction over the challenges filed.[v] Currently, it is being debated whether states can challenge the Clean Water Rule in two federal courts at the same time.[vi] The Department of Justice (DOJ) has argued that because the U.S. Court of Appeals for the Sixth Circuit said it has jurisdiction to review lawsuits over water regulation, a similar suit in the Eleventh Circuit should be dismissed on “jurisdictional grounds alone.”[vii] The DOJ’s reasoning is that states should not support the Eleventh Circuit’s stance regarding jurisdiction because their petitions are being consolidated with other states’ petitions to be heard in front of the Sixth Circuit.[viii]
But what allows the Sixth Circuit to have the jurisdictional hold on the Clean Water Rule? Apparently, that court does not have the stamped seal of approval just yet. On August 5th, 2016 a federal district court in Minnesota will either defer the ruling by the Sixth Circuit or accept the decision which held that the Sixth Court was the proper venue to hear all lawsuits against the Clean Water Rule.[ix] By July 1, 2016, the Tenth Circuit will also have briefs filed by business groups.[x] It will definitely be interesting to see where the courts land on this issue. Hopefully, it will be resolved in the upcoming months.
[i] Summary of the Clean Water Act, EPA, https://www.epa.gov/laws-regulations/summary-clean-water-act (last updated October 8, 2015).
[iii] Clean Water Act (CWA) Compliance Monitoring, EPA, ,https://www.epa.gov/compliance/clean-water-act-cwa-compliance-monitoring (last updated October 8, 2015).
[iv] Clean Water Rule, EPA, https://www.epa.gov/cleanwaterrule (last updated December 4, 2015).
[v] Clean Water Current, Nat’l Ass’n of Clean Water Agencies, (Oct. 9, 2015), https://www.nacwa.org/index.php?option=com_content&view=article&id=2279&Itemid=158#four.
[vi] Amena H. Saiyid, Water Rule Can’t Be Argued in Two U.S. Courts, DOJ says, Bloomberg BNA: Environment Reporter (June 1, 2016), http://news.bna.com.ezproxy.law.uky.edu/erln/ERLNWB/split_display.adp?fedfid=90892950&vname=ernotallissues&jd=a0j5g2q6k1&split.
[ix] Amena H. Saiyid, Federal Courts Still in Limbo Over Venue to Hear Water Rule Suits, Bloomberg BNA: Environment Reporter (June 16, 2016), http://news.bna.com.ezproxy.law.uky.edu/erln/display/alpha.adp?mode=topics&letter=J&frag_id=92042178&item=3569&prod=erln.