April 3, 2017

WOTUS suit goes forward in the Supreme Court

By M. Reed Hopper Senior Attorney

In our last WOTUS update, we informed you that the President recalled the infamous WOTUS rule redefining “waters of the United States” under the Clean Water Act and directed DOJ and the EPA to revise the rule in accordance with the Scalia opinion in Rapanos v. United States. This effectively ended our challenge to the validity of the rule in the Sixth Circuit Court of Appeals. However, the President’s order has no effect on our suit in the Supreme Court which asks the Court to decide where challenges to the WOTUS rule may be brought.

Because the WOTUS rule will be revised and reissued, some parties moved the Supreme Court to hold the briefing in abeyance until the new rule is issued. We opposed that motion because it would simply delay the inevitable. Whenever the new WOTUS rule is issued, all parties need to know which court has jurisdiction to hear any challenge to the rule. Should the challenge be brought in the district court or the appellate court? That remains an open question and there is no reason why the Supreme Court should delay answering that question. The Court agreed. Today, the Supreme Court denied the motion to hold the briefing in abeyance. Instead, the case will proceed as scheduled.  Our opening brief arguing that challenges to the WOTUS rule must first be brought in the district court is due April 13, unless an extension is granted. The National Association of Manufacturers has asked for an extension to April 27. This extension will likely be granted at which time we will file our opening brief.

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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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