Legal Alerts Jan 22, 2018

Supreme Court WOTUS Decision Vacates Sixth Circuit Decision

District Court Stays and EPA Delay of Rule Implementation Remain in Effect

Supreme Court WOTUS Decision Vacates Sixth Circuit Decision

The Supreme Court issued a decision today regarding which federal courts have jurisdiction to hear challenges to the 2015 Waters of the U.S. Rule. The Supreme Court found that appeals of the WOTUS Rule belong in the federal district courts rather than the courts of appeal. This means that the underlying Sixth Circuit Court of Appeals decision on WOTUS jurisdiction will need to be reversed and the case pending there dismissed. Therefore, the Sixth Circuit’s nationwide stay of the Rule will be vacated as well.
Several district courts, including in North Dakota, issued stays in addition to the Sixth Circuit. These stays will remain in effect within the limited geographic areas covered by the stays – basically the jurisdictions of the district courts that issued the stays. A number of states (including California and New York) are not covered by a stay. To preemptively address this situation, the U.S. Environmental Protection Agency issued a notice in the federal register in November delaying implementation of the Rule until 2020. The EPA delay of implementation is somewhat unprecedented and could be challenged. For now, implementation of the Rule will remain delayed nationwide under the EPA action. If that action is struck by a court (a number of state Attorneys General submitted comments in opposition but so far none have sued), then stays will remain in portions, but not all, of the United States. Lastly, as a result of the Court’s decision, substantive challenges to the 2015 WOTUS Rule will now be heard in federal district courts, with appeals to the courts of appeals and then the Supreme Court.
If you have any questions about the Supreme Court decision or what it means for pending challenges to the 2015 WOTUS Rule, please contact the author of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.


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