Implications of the Supreme Court's Clean Water Rule/WOTUS Ruling

by Dave Owen | January 22, 2018

Originally published on Environmental Law Prof Blog.

Today, the United States Supreme Court decided National Association of Manufacturers v. Department of Defense, a case determining whether challenges to the "Clean Water Rule" or "Waters of the United States Rule" should be heard in federal district court or in the United States Court of Appeals for the Sixth Circuit. The answer, the Supreme Court unanimously held, is federal district court, and the Court remanded the case to the Sixth Circuit to dismiss the appellate court petitions.

This post provides brief answers to a few likely questions about the decision.

Was this a surprising outcome? It was not. Many legal observers expected the Court to reverse the Sixth Circuit. Indeed, the two Sixth Circuit judges who concluded that they did have jurisdiction were rather unenthusiastic about their holding and blamed it primarily on precedent. The government's arguments were grounded primarily in judicial and administrative convenience rather than statutory text, which, in this textualist era, is a pretty good recipe for a 9-0 loss.

What are the immediate effects? Before reaching its jurisdictional holding, the Sixth Circuit had issued a nationwide stay on implementation of the rule. That stay now must dissolve; a court cannot sustain an injunction in a case in which it lacks jurisdiction. That means the Clean Water Rule will now go into effect in those areas where it has not been stayed by ...

Repeal First, Explain Later: The Trump Administration and the Clean Water Rule

by Dave Owen | June 28, 2017
Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen. EPA and the Army Corps of Engineers just released a proposal to repeal the Clean Water Rule and to return to previous regulations. The Clean Water Rule (also known as the WOTUS Rule) would have clarified the scope of federal regulatory jurisdiction under the Clean Water Act. It was one of the Obama administration's signature environmental initiatives, and it was one of candidate and then President Trump's signature targets. So the ...

Whither WOTUS?

by Daniel Farber | May 24, 2017
President Trump ordered EPA and the Army Corps to review the Obama Administration’s Waters of the United States (WOTUS) rule, which sets expansive bounds on federal jurisdiction over water bodies and wetlands. The agencies have sent the White House a proposal to rescind the WOTUS rule and revert to earlier rules until they can come up with a replacement. In my view, either the agencies will have to dive deep into the scientific thicket in the hope of justifying a new ...

CPR's Buzbee to Set the Record Straight on WOTUS at Senate Hearing

by James Goodwin | May 24, 2016
This afternoon, the Fisheries, Water, and Wildlife Subcommittee of the Senate Environment and Public Works Committee will convene a hearing on a topic that is fast becoming the congressional conservative equivalent of talking about the weather: the Environmental Protection Agency's (EPA) Clean Water Rule.  With the provocative title of "Erosion of Exemptions and Expansion of Federal Control – Implementation of the Definition of Waters of the United States," the hearing is unlikely to provide a sober or thoughtful forum for ...

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