January 13, 2017

Supreme Court grants review of PLF Clean Water Rule challenge

By M. Reed Hopper Senior Attorney

As we noted here, our challenge to the government’s expansive and controversial rule redefining “waters of the United States” (WOTUS) raises two important questions: (1) is the rule valid and (2) which is the proper venue for challenging such a rule–the federal district courts or the federal courts of appeals. The first question is being litigated in the 6th Circuit Court of Appeals.  The second question will now be decided by the U.S. Supreme Court.

Today the Supreme Court granted our request to hear the case.  It will be heard in April and decided by June of this year. The fact that the court has taken the case bodes well for our position that the Clean Water Act authorizes jurisdictional challenges in the federal district (trial) courts and need not be brought only in a court of appeals. The issue is important because it is unclear where and when regulated landowners can go to challenge federal rules interpreting the Clean Water Act.  Filing a claim in the wrong court can result in losing the right to challenge the rule at all. The position we advocate maximizes the opportunity for the regulated public to challenge rules that define the scope of the Act.

Our brief urging the court to take the case can be read here.  We will be filing another brief, on the merits of the case, in a couple of months.

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Waters of the United States

In 2015 PLF challenged the Environmental Protection Agency’s proposed rule to stretch federal control to nearly every pond, ditch, and puddle in the nation as nothing more than an outrageous—and illegal—power grab under cover of the Clean Water Act. And under the Act, people who are harmed by such rules have six years to sue in federal district court. That is, until the EPA rewrote the rule, trying to prevent legal action by giving property owners just 120 days to sue, and then only in federal appellate courts. On January 22, 2018, the U.S. Supreme Court rejected the EPA’s power play and unanimously ruled for PLF and property rights. The High Court agreed with PLF that the EPA cannot shelter its “waters of the United States” rule from judicial review by arbitrarily limiting where victims can sue.

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