The Biden administration's “waters of the U.S.” rule survived a court challenge in Kentucky, where a federal judge rejected an injunction request by the state and the Kentucky Chamber of Commerce to enjoin the rule.
There is no controversy to adjudicate, U.S. District Judge Gregory Van Tatenhove said in his opinion on Friday. “Without a certainly impending injury, the matter is not ripe for review,” he said. “Simply put, there is no standing.”
A federal judge in Texas recently issued an injunction halting the implementation of the rule, which went into effect March 20, in Texas and Idaho.
The American Farm Bureau Federation is among 18 trade groups that have asked another federal court, in North Dakota, for an injunction. AFBF and the other groups have intervened in that case, which was brought by 24 states.
The government filed notice Monday of the Van Tatenhove decision in the North Dakota court, but the state plaintiffs said in response that the Kentucky ruling has no relevance there.
The states said Van Tatenhove “recognized that a state can ‘perhaps’ establish standing ‘by identifying a water which should be in its exclusive control over which the agencies assert jurisdiction under the new rule.’ The states here did just that.”
To demonstrate standing to pursue legal action in federal court, plaintiffs have to show they have standing, which Van Tatenhove summarized “requires (1) an injury-in-fact that is (2) traceable and (3) redressable.”
“The plaintiffs seek injunctive relief before the agencies have begun enforcing the rule,” the judge said. “This implicates decades of precedent considering when an expected injury affords standing. Preenforcement review is permissible if threatened enforcement is ‘sufficiently imminent,’” he said, quoting a 2014 Supreme Court decision.
Quoting another high court decision from 1962, the judge said, “Absent the kind of injury sufficient to confer standing, a party does not have an adequate stake in the outcome of the litigation to make it a ‘case or controversy.’”
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The Southern Environmental Law Center filed a friend of the court brief in the case, defending the rule on behalf of a number of environmental groups, including Kentucky Resources Council, the National Wildlife Federation and four other state wildlife federations.
“The rule that the attorney general of Kentucky and industry groups challenged restores longstanding Clean Water Act protections that have been in place for decades through bipartisan practice,” SELC said in a news release.
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This article has been corrected to indicate the correct venue of the North Dakota case.