A court ruling related to enforcement of the Environmental Protection Agency’s Waters of the U.S. rule and its constitutionality appears to be several months away to more than a year away.
As one attorney put it, “It’s a muddy quagmire.” Larry Liebesman, a senior adviser at Dawson & Associates and a former senior trial attorney in the Department of Justice’s environmental division, during an interview on E&E TV, noted the jurisdictional issues involved and that there are “judicial confusion over the language of the rule and also policy interpretations.”
There were several lawsuits brought against the EPA to stop enforcement of its WOTUS rule. “The Clean Water Act has a very narrow avenue of judiciary review of EPA Action of Section 509, and there’s been a lot of disagreement among the courts about how to interpret what is subject to review,” Liesbesman said.
One question has been whether the courts are addressing a definitional rule so jurisdiction is in the federal district courts or whether the U.S. Court of Appeals for the Sixth Circuit (Ky., Mich., Ohio and Tenn.) truly has jurisdiction as the court of appeals.
“It’s a crazy quagmire of jurisdiction that makes it very hard to actually get to the merits of the challenge, but yet it is going to be spinning around with this petition for rehearing and … in the 6th Circuit that could—who knows where that’s going to come out or when that decision will be issued,” Liebesman said.
The WOTUS rule cannot be enforced with a stay in place. Liebesman explained that it will be several months before the Sixth Circuit Court will rule on rehearing arguments against the rule even being in that court’s jurisdiction. And then if the ruling is to take the case in front of the full court, it will be some more months of court haggling.
And then there is always the Supreme Court case that will be filed, probably no matter which way the case is ruled—government or industry/farmers.
Monica Trauzzi, host of the E&E TV program, questioned Liebesman about an off the cuff comment made by Supreme Court Justice Anthony Kennedy where he seemed to suggest the Clean Water Act is arguably unconstitutionally vague.
Liesbesman said the “offhanded” comment was taken out of context. In another court ruling referred to as the Hawkes case, Liesbesman did note that Kennedy, in his view, seemed to suggest siding with landowners could be appropriate law because the Clean Water Act could very well be unconstitutionally vague.