February 2, 2018

Supreme Court win for PLF opens way to challenge EPA land grab

By Anthony L. Francois Senior Attorney

PLF won an important case in the Supreme Court of the United States last week, holding that our clients have the right to sue the EPA over its 2015 “waters of the United States” regulatory land grab in federal trial courts across the nation. This ends EPA’s 30 month delaying tactic of litigating over which court we are allowed to see the agency in, and clears the way for our lawsuit to move forward against EPA’s illegal land grab on the merits.

Regular readers are aware that since 2015 PLF has been suing to overturn an EPA land grab implemented during the Obama administration. EPA adopted a new definition of “water” under the Clean Water Act that, by bureaucratic magic, redefined millions of acres of privately owned dry land land into the federal government’s “navigable waters.” As a result of this administrative alchemy, these land owners now need the permission of the Army Corps of Engineers or the EPA just to use their own property.

We have been at it for two and a half years now, so you might think that the courts would have decided the case by now. But instead, the government has forced the parties to spend this time suing over what court we should be suing in. EPA based this delaying tactic on an obscure technical provision of the Clean Water Act, 33 U.S.C. section 1369(b)(1), which on its face applies to things like nationwide wastewater permits for sewage plants. EPA improperly claimed that section 1369 also applies to the 2015 water redefinition. If it applied, section 1369 would require that our lawsuit be filed directly in the court of appeal and consolidated with almost 100 other parties’ claims, and would limit the right to challenge EPA’s land grab to the first 120 days after the rule was adopted.

This would have seriously limited EPA’s accountability to the judiciary and citizens. Normally, challengers have six years to sue over an illegal government regulation, and even after that can still defend against enforcement of the regulation on the grounds that it is illegal. Property owners may not yet know about EPA’s land grab,and others who would he harmed by it may not even own property yet. If EPA’s gambit succeeded, all of these citizens would be at the mercy of the bureaucracy even as it enforced illegal rules against them.

But last Monday the Supreme Court ruled in our favor, adopting PLF’s argument and confirming that our suit against EPA can proceed in federal district court. We will now be able to proceed to the merits of the case, with high hopes for success in getting this illegal land grab thrown out.

The EPA’s 2015 WOTUS rule claims that parts of this farm field are the federal government’s navigable waters

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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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