2020 Environmental Real Estate IssuesOn January 17, 2019, the US Court of Appeals for the 6th Circuit refused to grant rehearing en banc of a key Clean Water Act (CWA) case.  Two of the 16 active circuit court judges issued written dissents from the refusal.  This decision means the holding by the three-judge panel in Tennessee Clean Water Network v. TVA remains the decision of the Sixth Circuit.

Conflict within the Circuits regarding the “Hydrological Connection” Theory
Those requesting US Supreme Court review in County of Maui v. Hawai’I Wildlife Fund (from the Ninth Circuit) and Kinder Morgan v. Upstate Forever (from the Fourth Circuit) have identified the holding in Tennessee Clean Water Network as creating a conflict within the circuits on the “hydrological connection” theory of CWA liability.  The Ninth and Fourth Circuits have held a discharge is subject to the CWA when a pollutant released from a point source travels through groundwater to navigable waters; the Sixth Circuit held it is not.

Sixth Circuit Refuses Request for En Banc Rehearing
Circuit courts are mid-level federal appellate courts; most cases are decided by three-judge panels.  On rare occasions, circuit courts grant rehearing en banc and have all active judges in that circuit court consider a case.

While the request in Tennessee Clean Water Network for rehearing en banc was pending before the Sixth Circuit, Hawai’i Wildlife Fund submitted a supplemental brief to the Supreme Court, informing the Supreme Court that the Sixth Circuit may agree to a rehearing en banc, which could lead to elimination of the claimed conflict within the circuit courts.  Hawai’i Wildlife Fund opposes Supreme Court review of its case.

The decision to refuse rehearing en banc means the decision of the three-judge panel, which the federal government and others advocating Supreme Court review say creates a conflict within the circuits, remains in effect.

The Supreme Court has yet to decide if it will hear the appeal of any case involving the “hydrological connection” theory.  Had the Sixth Circuit agreed to rehearing en banc, this could have discouraged the Supreme Court from accepting appeal in the other cases.

The Supreme Court has no deadline in which it must decide if it will hear an appeal, but the Court will probably decide if it will consider any issues in County of Maui or Kinder Morgan before the Court’s term ends this summer.

For a copy of the Sixth Circuit’s order denying rehearing en banc, including the two dissents, http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0006p-06.pdf