Opinion: WOTUS just entered the mosh pit

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“Cry ‘Havoc!’, and let slip the dogs of war” —  William Shakespeare’s Julius Caesar

Supreme Court justice Sonia Sotomayor did not actually quote Shakespeare last month in her unanimous decision for the court over which jurisdiction(s) should hear cases regarding the Obama Administration’s Waters of the United States rule that attempts to clarify which wetlands and streams receive automatic protection under the nation’s Clean Water Act … but she could have.

Writing for the court, Sotomayor says:

“Congress has made clear that rules like the WOTUS Rule must be reviewed first in federal district courts.”

Last July, the Sixth Circuit Court of Appeals decided it had national jurisdiction over the WOTUS deliberations and slapped a stay on the law taking effect pending its ruling.

In doing so, the Sixth Circuit pushed aside WOTUS cases in federal district courts including North Dakota where a preliminary injunction was issued preventing WOTUS from going into effect across several states. These include North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming and New Mexico.

Any day now the Sixth Circuit will vacate its WOTUS claim of jurisdiction and attempt to deal with  the stay – perhaps asking all parties in the case to submit briefs on what to do next.

But it’s more likely the stay will just disappear – if the Sixth Circuit does not have jurisdiction on the WOTUS case how can it issue a stay?

The soon to be very, very messy district court mosh pit is not sitting well with the Trump Administration.

Environmental Protection Agency administration Scott Pruitt finalized the WOTUS rule in the Federal Register on January 31, but delayed its implementation for two years to give the agency time presumably to write current WOTUS language out of existence.

Pruitt bypassed the normal 30-day waiting period for when a final rule in the Federal Register is published and when it goes into effect.

That is not sitting well with the National Wildlife Federation and the Natural Resources Defense Council, which have quickly challenged in the Southern District of New York Pruitt’s move to delay WOTUS implementation.

Not to be out done by the National Wildlife Federation and the Natural Resources Defense Council, the NRDC the Southern Environmental Law Center filed its own challenge in South Carolina District court while 11 Attorneys General filed a challenge against the implementation delay in the Southern District Court of New York.

The Supreme Court ruling clears the way for litigants to file in district courts more likely to be friendly to the WOTUS rule and surely will lead to conflicting district court rulings.  Routinely parties have filed their motions simultaneously in both district and appellate courts not knowing which might ultimately have jurisdiction.  But the Supreme Court ruling for most cases ends that practice, finding statutory language clearly says cases may be filed only in district courts.

Release the hounds indeed!

About Dave Dickey

Dave Dickey

Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Big Ag Watch covers agriculture and related issues including politics, government, environment and labor. Email him at dave.dickey@investigatemidwest.org.

This column reflects the writer’s own opinions and not those of Big Ag Watch.

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