Twelve lawsuits brought against EPA's Clean Water Rule to be heard together

By Whitney Forman-Cook

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WASHINGTON, July 31, 2015 - A dozen lawsuits brought in protest against the Obama administration's newly finalized “waters of the United States” (WOTUS) rule are scheduled to be heard together as one case before the 6th Circuit Court based in Cincinnati, Ohio.

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The WOTUS rule, renamed the Clean Water Rule prior to being published in the Federal Register by EPA and the Army Corps of Engineers in late June, aims to expand Clean Water Act protections to cover streams and wetlands, angering some agricultural stakeholders who perceive the measure as unduly burdensome.

Environmental groups, state governments and industry representatives alike filed their petitions against the rule in quick succession, both in district and circuit courts, after the final version was released. Groups like the Natural Resources Defense Council (NRDC) and the National Wildlife Federation (NWF) called for more pollution protections, while other industry leaders, like Murray Energy Corp and the American Farm Bureau Federation, wanted narrower rules that will not interfere with business operations.

Because the suits address common issues, EPA and the Army Corps asked to have the petitions consolidated by the Judicial Panel on Multi-District litigation. The panel agreed, and then randomly selected a circuit court to hear the challenges. The lottery winner - the 6th Circuit Court, which covers parts of Kentucky, Michigan, Ohio and Tennessee - is known to be relatively moderate, particularly in comparison to the more traditionally liberal 9th and 2nd Circuit Courts, where environmental groups filed petitions at the outset.

Several legal experts told Agri-Pulse that only time will tell whether the 6th Circuit Court was a lucky pick for any side. In the mean time, plaintiffs are doubling down.

Jon Devine, senior attorney for NRDC, said the circuit wouldn't shift his organization's focus, which “has been all along” to ensure the rule protects water quality. “Because (our) focus overlaps with the Clean Water Act's purpose, structure and history, we are confident in our chances before any court looking at the issue,” Devine said.

Jan Goldman-Carter, the senior manager for NWF's wetland and water resources division, said more of the same: “Since our objective mirrors that of the Clean Water Act itself… we should succeed in securing a strong Clean Water Rule regardless of which court hears these challenges.”

Consolidating the challenges to the rule will no doubt speed up the ultimate resolution on the WOTUS rule; but there's no telling when such a resolution will be delivered.

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