On January 19, 2016, President Obama vetoed legislation that, if approved, would have nullified the Clean Water Rule. Keith Garner and James Rusk at Sheppard Mullin Richter & Hampton comment.
The controversial rule, which redefines which water bodies qualify as “waters of the United States” under the Clean Water Act, was issued by the EPA and US Army Corps of Engineers in June of 2015 and was immediately challenged by several states and private parties.
A joint resolution approved by the Senate last November and by the House earlier this month largely along party-line votes, would have disapproved the rule under the Congressional Review Act and prevented the promulgation of a similar rule. But the President vetoed the resolution, meaning the fate of the rule now rests with the courts.
Several challenges to the rule are currently pending in various courts. Many states challenged the rule in district courts across the country shortly after promulgation. Most district courts stayed or dismissed the lawsuits pending the Sixth Circuit’s decision in a separate action concerning whether the Clean Water Act gives circuit courts exclusive jurisdiction over challenges to the rule. However, one district court in North Dakota, which issued an injunction against the rule in thirteen states, has kept the litigation in that court active despite the ongoing proceedings in the Sixth Circuit.
Meanwhile, the Sixth Circuit has separately stayed the rule nationwide while it considers the jurisdictional question. The circuit court found that the petitioners had a “substantial possibility of success” on the merits of their claims that the rule was at odds with the Supreme Court’s decision in Rapanos v. United States.
Many commentators expect the challenge to the rule itself to end up in front of the Supreme Court.