Enforcement of the Biden administration’s “waters of the U.S.” rule is now blocked in 27 states following an appeals court decision out of Cincinnati Thursday in a challenge brought by the state of Kentucky and business groups.
The 6th U.S. Circuit Court of Appeals issued an “administrative stay” on enforcement of the rule until May 10 while it decides whether to issue an injunction.
If granted, that injunction would remain in effect while the Commonwealth of Kentucky and Kentucky Chamber of Commerce – and other groups – appeal the denial of an injunction by a district court judge as well as dismissal of their case.
In a statement, Kentucky Attorney General Daniel Cameron said the ruling stops the Biden administration “from enforcing its burdensome WOTUS rule in Kentucky.
“This is an important win for Kentuckians, especially our farmers, who were being unnecessarily burdened by these new restrictions," Cameron said. "We are grateful to the court and will be working to make this ruling permanent in the weeks and months ahead.”
Two other courts have already blocked enforcement of the rule in 26 states. (See stories here and here.)
The ruling did not specify the scope of the stay, saying simply, “an administrative stay of enforcement of the agency’s final rule is granted until May 10,” which prompted the U.S. to seek clarification of the order so that it grants the parties only the relief they requested. The motion said the state and business groups had no objection, and on Saturday, the court granted the motion.
Kentucky sought a prohibition on enforcement within its borders. The business groups asked the court to block enforcement against their members.
That would be a sizable number of businesses. The groups suing over the rule include the Kentucky and Georgia chambers of commerce, the U.S. Chamber of Commerce, and the Portland Cement Association, as well as Kentucky-based groups.
Earlier this month, U.S. District Judge Gregory Van Tatenhove said there was no controversy to adjudicate in denying the state's and groups’ injunction requests.
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“Without a certainly impending injury, the matter is not ripe for review,” he said in his order. “Simply put, there is no standing.”
But the state and the chamber, along with other industry groups, said businesses are faced with “irreparable harm,” one of the requirements for securing an injunction.
“Contrary to the district court’s reasoning, the rule has applied directly to appellants’ members since becoming effective,” the business groups said in their April 20 motion.
In its two-page order, the three-judge panel of the appellate court set a short briefing schedule. It ordered EPA to respond by May 1, with replies to that response due by May 5.
This story has been updated with news of the government's motion for clarification.
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