States' Bid To Scrap 2015 CWA Rule Echoes Kavanaugh Test For EPA Rules

摘要

Three GOP-led states are asking a federal district court to scrap the Obama-era Clean Water Act (CWA) jurisdiction rule due to a lack of "clear" authorization from Congress for the policy, a claim that echoes Supreme Court Justice Brett Kavanaugh's preferred test for reviewing major agency rules and could bolster their suit if it reaches the high court. The Oct. 18 summary judgment brief filed by Texas, Louisiana and Mississippi with the U.S. District Court for the Southern District of Texas is the first substantive brief in a CWA jurisdiction suit since Kavanaugh's confirmation on Oct. 6, and incorporates a line of argument that the newly confirmed justice - previously a federal appeals court judge - focused on in testimony to Congress as a centerpiece of his judicial philosophy. Relevant documents are available on InsideEPA.com. (Doc. ID: 216146) That principle at issue is the doctrine that agencies cannot undertake "major" new rules, especially when they would significantly expand their authority, without clear authorization to do so in statutory text.