November 2, 2016

Briefing starts in Clean Water Rule challenge

By M. Reed Hopper Senior Attorney

We filed our challenge to the Corps and EPA’s over-broad definition of “waters of the United States” (WOTUS), under the Clean Water Act, over a year ago. And although the U.S. Supreme Court has not yet ruled on the proper venue for such a challenge, briefing has started on the merits of the case in the 6th Circuit Court of Appeals. We filed our joint industry opening brief yesterday. The States, that are challenging the Clean Water Rule, also filed their joint opening brief yesterday. The briefs lay out a persuasive case that the Clean Water Rule is invalid on its face and should be struck down. The rule is unprecedented in scope and irreconcilable with Supreme Court precedent, congressional intent, and constitutional constraints. Internal memos show top agency officials opposed the rule, as written, because the rule is legally insupportable and scientifically indefensible. In the annals of government abuse, this rule tops the list for agency overreach.

Briefing will continue until March 29, 2017, after which the 6th Circuit will set a date for oral argument.  Then, it’s off to the U.S. Supreme Court.

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