The Sixth Circuit Stays the Waters of the United States Rule: Just a Plain Vanilla Preliminary Injunction — Not!

Today, the Sixth Circuit Court of Appeals issued a nationwide stay against implementation of the “Waters of the United States” rule.  The case is so weird, alice in wonderlandin so many ways, that I don’t even think I can count them.  Here are a few.

  • The Court stayed the case, even though, as the dissent pointed out, there is question whether it even has jurisdiction to hear the appeal. How can it issue a stay if it does not have jurisdiction?  If the Court was so worried about the implications of the case, why couldn’t it simply have established an accelerated schedule for deciding the jurisdictional issues.
  • The plaintiffs – obviously – selected the forum, but now appear more interested in having the case heard in the district courts. Nonetheless, they argued that the Court of Appeals should stay the rule, even as they questioned the jurisdiction that they first invoked.
  • EPA and the Corps argued in all of the district court cases that the district courts should not hear challenges to the rule, because the challenge should be heard in consolidated proceedings before the 6th Circuit – in other words, in this case. Nonetheless, EPA argued that the Court should not rule on the stay request, because there is legitimate question concerning the court’s jurisdiction.
  • The Court granted the injunction on the basis that there is a substantial possibility – not even a substantial probability – that the plaintiffs will succeed on the merits. I think you could find linguists, not to mention Vegas oddsmakers, who might equate a “substantial possibility” to something on the order of 20%-30%.  Since when is that enough to procure an injunction?
  • The Court also acknowledged that the plaintiffs would not suffer irreparable harm if the WOTUS rule were left in place pending litigation. Since when do courts issue injunctions because there is a substantial possibility that that the plaintiffs will prevail and in the face of a finding that they will suffer no irreparable harm if the remedy is deferred until a decision on the merits?
  • The Court’s discussion as to why the plaintiffs had a “substantial possibility” of success on the merits focused in large part on EPA’s decision in the final rule to include distance limitations on jurisdiction. However, those limitations largely restrict EPA’s authority.  In other words, those are the parts of the rule that the plaintiffs like; it is the environmental NGOs who are unhappy with the distance limitations.  So plaintiffs may prevail in a challenge to the rule because EPA and the Corps added provisions to make it more palatable to them?

I still think that EPA successfully wrote a rule to address Justice Kennedy’s “significant nexus” concurrence in Rapanos, but I’m beginning to feel that the litigants and the court have all fallen down the rabbit hole.  Or, as Lewis Carroll said:

we’re all mad here.

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