Oct 26: In the U.S. Court of Appeals, Eleventh Circuit, Case Nos. 08-13652, 08-13653, 08-13657, 08-14921, & 08-16283. Petitions for Review of a Decision of U.S. EPA. The case involves determining whether the Appeals Court has original subject matter jurisdiction over several petitions for review of an administrative rule that exempts transfers of waters of the United States from the requirements for a permit under the Clean Water Act, 33 U.S.C. § 1251 et seq., or whether the Appeals Court may avoid deciding that question and instead exercise hypothetical jurisdiction to decide the merits of the petitions. Friends of the Everglades, several other environmental organizations, nine states (NY, CT, DE, IL, ME, MI, MN, MO, WA), the province of Manitoba, Canada, and the Miccosukee Tribe argue that original jurisdiction belongs in a district court, but they filed protective petitions for review of the water-transfer rule in this and another circuit [Second Circuit] after the Administrator of the Environmental Protection Agency stated her position that the initial judicial review of the rule could be had only in the circuit courts of appeals.
The Judicial Panel on Multidistrict Litigation consolidated the petitions in this Court. The South Florida Water Management District and the United States Sugar Corporation intervened to defend the rule along side the Administrator. United States Sugar urges the Appeals Court to exercise hypothetical jurisdiction and deny the petitions. But the Appeals Court held that, "under the plain language of the governing statute, id. §1369(b)(1), we lack original subject matter jurisdiction to review the petitions and we may not exercise hypothetical jurisdiction over them. We dismiss the petitions."
Explaining further, the Appeals Court said, "The Administrator argues that we should read section 1369(b)(1)(F) to apply to any 'regulations relating to permitting itself,' but this interpretation is contrary to the statutory text and was persuasively rejected in Northwest Environmental Advocates. The Ninth Circuit held that it did not have jurisdiction under section 1369(b)(1)(F) to review a regulation creating new exemptions from the permit program. Nw. Envtl. Advocates. 537 F.3d at 1018. The Ninth Circuit explained that a new exemption will never produce a permit decision to be reviewed under section 1369(b)(1)(F) before the court of appeals is able to review the underlying regulation, so there is no reason to read the section as providing original subject matter jurisdiction to review the exemption. Id Although the Sixth Circuit later adopted the interpretation advanced by the Administrator, Nat'l Cotton Council of Am. v. EPA. 553 F.3d 927, 933 (6th Cir. 2009), it did so in an opinion that provided no analysis of the provision and that cited two decisions of the Ninth Circuit that the Ninth Circuit had distinguished in Northwest Environmental Advocates, see id. We lack original jurisdiction to review a permanent exemption from the permit program."
Regarding the hypothetical jurisdiction issue, the Appeals Court said, "We cannot exercise hypothetical jurisdiction any more than we can issue a hypothetical judgment. 'Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.' Kokkonen v. Guardian Life Ins. Co. of Am.. 511 U.S. 375,377,114 S. Ct. 1673, 1675 (1994) (internal citations omitted). Because we conclude that section 1369(b)(1) does not grant original subject matter jurisdiction over these petitions, we may not address the merits of this controversy."
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