Revived Obama-Era CWA Rule Stokes Litigation Threats, Escalates Confusion

摘要

States, industry, environmentalists and EPA are all grappling with the uncertain status and future of the newly revived 2015 Clean Water Act (CWA) jurisdiction rule - uncertainty that promises to ramp up in the coming weeks as opponents of the rule are vowing to mount early appeals unless district judges act soon to block its enforcement. In recent court filings, the Trump administration and GOP-led states have warned that unless district judges quickly grant their requests to either narrow the effects of the Aug. 16 district court order that revived the 2015 CWA rule in 26 states, or halt it entirely, they will sidestep that level of review and bring their cases to appellate courts. The move would further complicate the already-complex litigation over the water law's scope. "[A]t a, minimum, this Court should ... immediately grant the Plaintiff States' motion to enjoin the [jurisdiction] Rule within their states to provide protection from immediate and irreparable harm. Failure by this Court to promptly act on the pending request for preliminary injunction will leave Plaintiff States no choice but to seek relief from the Fifth Circuit," reads an Aug. 28 filing by Texas, Louisiana and Mississippi in the U.S. District Court for the Southern District of Texas. Relevant documents are available on lnsideEPA.com. (Doc. ID: 214744) Similarly, EPA and the Army Corps of Engineers, which jointly crafted the CWA rule in 2015 but under the Trump administration delayed its enforcement and arc proposing a repeal, have set a Sept. 4 deadline for the South Carolina district court that scrapped the delay to narrow or stay its ruling before they ask appellate judges to act. In a joint brief, they say a short deadline is appropriate given "the harm caused by patchwork application of the 2015 Rule" from state to state.