In re Clean Water Act Rulemaking

Background

Section 401 of the Clean Water Act generally prevents a federal agency from issuing a permit or license for an activity that may discharge into navigable waters unless the relevant state or other certifying entity issues or waives a water-quality certification. The Environmental Protection Agency administered that process through 40 C.F.R. Part 121 and substantially revised the rule in 2020.

The plaintiffs challenged the 2020 rule. In an October 2021 order, the court vacated the rule and remanded it to the agency for revision. The Environmental Protection Agency did not appeal, but intervenors who defended the rule did. The district court and the court of appeals denied requests to stay the vacatur. The Supreme Court later stayed the vacatur pending the appeal, putting the 2020 rule back into effect while the appeal proceeded.

The agency subsequently proposed a new rule that would revise Part 121. According to the opinion, the proposal would restore some principles from the earlier regulatory approach and discard major changes made in 2020.

Motion and governing rules

The plaintiffs sought an indicative ruling under Federal Rule of Civil Procedure 62.1. An indicative ruling is a statement from a district court about how it would decide a motion when an appeal temporarily limits its authority to grant that motion. The plaintiffs asked the court to state that it would grant relief under Rule 60(b)(6), change the earlier judgment to deny remand, and proceed to decide the merits of the 2020 rule.

Rule 62.1 permits the district court to defer consideration, deny the motion, or state that it would grant the motion after a remand from the appellate court or that the motion raises a substantial issue.

Court’s reasoning

The court concluded that the plaintiffs had not shown extraordinary circumstances. It noted that the court of appeals could still provide the relief the plaintiffs sought when it decided whether the vacatur was proper. The court also emphasized that appellate briefing was nearly complete and that the agency’s new rule was expected soon.

The court reasoned that litigating the merits of the 2020 rule could take nearly as long as the agency’s expected rulemaking. It stated that the new rule could make the larger dispute moot and described the plaintiffs’ effort to change course while the appeal was close to decision as “gamesmanship.” The court was not persuaded that it would grant the requested Rule 60(b)(6) relief or otherwise issue an indicative ruling.

Disposition and effect

The motion for an indicative ruling was DENIED. This order did not decide whether the 2020 rule was valid on the merits. The Supreme Court’s stay continued to control the effect of the earlier vacatur order while the appeal and agency rulemaking proceeded.