In a 2-to-1 opinion in which each judge expressed different views, the U.S. Court of Appeals for the 6th Circuit said that it would rule on consolidated petitions challenging the Clean Water Rule (CWR), jointly issued on June 29, 2015, by the EPA and the U.S. Army Corps of Engineers (agencies).
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The agencies had argued that the 6th Circuit should hear the case while the many state and industry petitioners preferred that challenges to the CWR be fought out in the federal district courts. It would be unlikely that the CWR would survive each of those district challenges. However, the agencies’ prospects are also uncertain according to the 6th Circuit, which said in an October 9, 2015, order that opponents had a substantial chance of winning their case on the merits; accordingly, the court ordered that the rule be stayed pending resolution of the jurisdictional and merit-based challenges.