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The SCOTUS to consider the WOTUS

Updated: Jul 23, 2020

By Sarah Everhart

Puddle in front of farm (Photo by Edwin Remsberg).

This is not a substitute for legal advice. See here for the site’s reposting policy.

For years, the legal specialists at ALEI have blogged about the twists and turns in the legal saga of the Clean Water Act (CWA) “Waters of the United States” (WOTUS) rule. For a quick review on the WOTUS rule, check out this past post, and for more information, type WOTUS into the search feature of this blog. The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers created the WOTUS rule to clear up confusion over the jurisdictional scope of the Clean Water Act. Opponents say the WOTUS rule is a regulatory overreach, unconstitutional, and inconsistent with legal precedent.

After the WOTUS rule became law in the summer of 2015, opponents across the nation filed lawsuits to stop its enforcement. On Oct. 9, 2015, a panel of three judges with the U.S. Court of Appeals for the Sixth Circuit issued a nationwide injunction preventing the EPA from enforcing the WOTUS rule. This was not the first injunction filed for the WOTUS rule but because it was issued by a federal appeals court, it served as a nationwide injunction.

On February 22, 2016, the Sixth Circuit further ruled, in a 2-1 decision, that it had the jurisdiction to review the more than 20 separate legal challenges to the WOTUS rule filed in numerous states. Industry groups led by the National Association of Manufacturers (and supported by groups such as the American Farm Bureau) were unhappy with the Sixth Circuit’s decision and sought an appeal of the decision in the U.S. Supreme Court (SCOTUS).

The appellants in the 6th Circuit appeal feel lower district courts should hear the challenges to the CWA, which can then be appealed to the SCOTUS. The appellants are concerned that if the Sixth Circuit rules on the legal challenges to the WOTUS rule and is later found to not have jurisdiction, the decisions could be overturned and the process would have to start over at the district court level. The appellants want the SCOTUS to end “once and for all” the jurisdictional confusion surrounding the WOTUS rule.

In early January 2017 before the Trump Administration took office, the SCOTUS decided to hear the case. Given the Trump Administration’s vocal dislike of the WOTUS rule, and the Executive Order to the EPA and the U.S. Army Corps of Engineers to reconsider the rule, however, many wondered if the case would actually proceed. Further, the U.S. Justice Department filed a motion in the SCOTUS case to halt the case to allow time for the government to reconsider the WOTUS rule.

Speculation over how the SCOTUS would handle the matter was put to rest last week when the Court rejected the Justice Department’s motion and decided to continue to hear the WOTUS appeal. And so the legal saga continues! Unless and until the SCOTUS rules otherwise, however, the Sixth Circuit’s injunction of the WOTUS rule is still valid, preventing its application by the EPA or the Corps of Army Engineers. Stay tuned to this blog for future updates.

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