Although the Supreme Court rarely grants a petition for rehearing, it does happen. With that in mind, Pacific Legal Foundation filed its Petition for Rehearing in the Kent Recycling Services LLC v. Army Corps of Engineers case now pending at the Court. You can read more about Kent Recycling at this link.
Generally, PLF recognizes the unlikelihood of the Court agreeing to re-hear a case, and thus does not pursue further relief at the Court once it denies a petition for writ of certiorari. But here, we had good reason to pursue rehearing: the win the Eighth Circuit Court of Appeals handed us in the Hawkes Inc., Co. v. U.S. Army Corps of Engineers case last week. That court held that a Corps of Engineers’ Jurisdictional Determination (i.e. wetlands delineation) is immediately reviewable in court and subject to challenge. In Kent Recycling, the Fifth Circuit addressed this same issue and came out the opposite way. That court held that JDs are not immediately reviewable in court. Now, the Supreme Court has a circuit split on an issue that means hundreds of thousands of dollars to landowners across the nation. With that in mind, we filed our petition.
As my colleague Reed Hopper wrote last week about the Hawkes case:
For the first time since the inception of the Clean Water Act (1972), overzealous government bureaucrats can be held immediately accountable in court for their erroneous assertions of federal control over private wetlands and other waters. This levels the playing field for landowners who have been at the mercy of overreaching government for far too long.
PLF believes this leveling of the playing field for landowners should apply across the nation. For this reason, we think we have given the Supreme Court ample reason to rehear Kent Recycling, hear the dispute on the merits, and then issue a decision that makes the rule of Hawkes applicable from sea to shining sea.