Dave Dickey
The twisting, corkscrewing legal battle over the Environmental Protection Agency’s Waters of the United States rule, or WOTUS, took another turn last month.
When we last blogged about WOTUS, the Sixth Circuit Court of Appeals in a tortured 2-to-1 decision ruled it had legal standing to consolidate and ultimately rule on a number of WOTUS cases that were percolating at district courts around the country.
That appeals court ruling led to more than 100 cases being consolidated in the Sixth Circuit.
Farmers claim WOTUS gives the EPA overly broad authority to decide what is and what is not within the rule’s purview, including water pooling on farmland.
The Sixth Circuit WOTUS consolidation ruling surely did not sit well with state attorney generals who were hoping to present their cases on the federal district court level.
In short, the attorney generals were most uncomfortable with the speeding legal WOTUS train at the Sixth Circuit Court of Appeals and were looking for something, anything, to slow down the proceedings.
Well… their prayers were answered on Friday the 13th in January when the Supreme Court stepped in.
The high court ruled that it would decide if the Sixth Circuit decision to consolidate WOTUS cases holds (pardon the pun) water.
After reviewing the evidence, the Supreme Court could send WOTUS cases back to the district courts where they started.
Needless to say, the plaintiffs in the case were delighted.
Lead principle plaintiff attorney M. Reed Hopper said the Supreme Court would lend a sympathetic ear:
“The Supreme Court’s announcement is encouraging news for millions of landowners nationwide who have been uncertain where to file suits challenging federal regulations that define the scope of the Clean Water Act. The Sixth Circuit read the Clean Water Act far too narrowly when it limited jurisdiction over WOTUS challenges to federal appellate courts. We expect the Supreme Court to overturn the Sixth Circuit decision.”
President Donald Trump has suggested he is not enamored with WOTUS. Ditto for Trump EPA nominee Scott Pruitt who has fought against WOTUS while Oklahoma attorney general.
Given how slowly the courts work, it’s totally possible that the Trump administration begins a formal process with the Army Corps of Engineers and Environmental Protection Agency to withdraw the rule.
Sounds simple, right? Think again.
Withdraw of WOTUS would need to go through the same process that created it in the first place — public notice, public comment and formal agency acceptance.
And a decision to end WOTUS would surely end up back in court by groups that disagree.
If Trump and Pruitt truly want to end WOTUS, their best chance lies in Congress by making changes to the Clean Waters Act. But they’ll need to cultivate some Democrat support to get it done.
Right now, the Sixth Circuit Court of Appeals has put a stay on WOTUS pending its decision on the ruling.
If somehow the stay gets lifted, Trump will face huge political pressure for America’s heartland to be the ag fixer in chief.
About 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 the past 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