Supreme Court WOTUS Decision Brings State Lawsuits
February 13, 2018 •
Following the U.S. Supreme Court’s decision on Jan. 22 that lawsuits over the 2015 Clean Water Rule will be heard in federal district courts, several U.S. states have filed suits. The rule, known as the Waters of the United States (WOTUS), issued jointly by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers seeks to expand the definition of WOTUS, giving the federal government jurisdiction over some of the smallest waterways in the country.
On Jan. 31, EPA Administrator Scott Pruitt signed a November-proposed rule delaying of the effective date of the 2015 WOTUS rule until 2020. The effective date of the 2015 rule was Aug. 28, 2015 until the rule was stayed nationwide by the U.S. Court of Appeals for the Sixth Circuit on Oct. 9, 2015.
The U.S. Supreme Court’s decision that WOTUS litigation be heard in federal district courts nullified the nation-wide stay.
The U.S. Supreme Court took up the question of whether the Court of Appeals had original jurisdiction to review challenges to the 2015 rule brought by 13 states. The October 2015 appellate stay decision was the result of several lawsuits consolidated into a multi-district case, including suits brought against EPA challenging the rule by Georgia, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah, Wisconsin, Oklahoma, Ohio, Michigan, Texas, Louisiana and Mississippi, as well as the U.S. Chamber of Commerce, the American Farm Bureau Federation, and the American Petroleum Institute. The appellate decision followed just weeks after Judge Ralph Erickson of the U.S. District Court for the District of North Dakota granted a preliminary injunction for 13 states on Aug. 27, 2015, to prevent the rule from taking effect Aug. 28. Those 13 states — Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, North Dakota, South Dakota and Wyoming — argued that EPA went outside its authority because the final rule violates state sovereignty, asserting jurisdiction over waters that are subject to state rather than federal control.
Earlier this month, State Attorneys General (AG) from California, Connecticut, Maryland, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington were joined by the AG from the District of Columbia in suing the Trump administration for halting the 2015 WOTUS rule.
ACA supports the delay of the WOTUS rule. During the 2014-2015 rulemaking process, ACA opposed EPA and the Army’s efforts to dramatically expand the scope of federal authority over water and land uses across the United States. ACA supports EPA and the Army Corps of Engineers’ efforts to effect changes to the rule that will provide continuity and certainty for regulated entities, the States, agency staff, and the public.
EPA has stated that it will pursue notice-and-comment rulemaking in which the agencies will conduct a substantive re-evaluation of the definition of WOTUS.