Now That The Supreme Court Has Decided Sackett Maybe We Should Leave Courts Out Of The Clean Water Act Rule Making Business For A Minute!

Sam Hess of Inside EPA reports that Idaho, Texas and several NGOs are pressing a District Court Judge in the Lone Star State to decide their challenge to the Biden Administration's Waters of the United States rule on the merits and then to order EPA and the Army Corps of Engineers to do various things after the Texas Judge decides, as they say he must, that EPA's eighth attempt to determine the reach of the Clean Water Act must be vacated.

It seems to me that this premature attempt to capitalize on the substance of the Supreme Court's Sackett decision disrespects our country's system of making and enforcing rules and distracts the regulators from doing the very things that the plaintiffs in the Texas case want EPA and the Corps to do more quickly.

It probably goes without saying that the Texas challenge plaintiffs are obviously right on the law. There is no way that the current Waters of the United States rule can be squared with the jurisdictional limits of the Clean Water Act set by our nation's highest court in Sackett. And, as Ms. Hess reports, that rule has already been enjoined in over half of the states and EPA isn't enforcing the controversial aspects of the rule in the other half.

If the plaintiffs in Texas or North Dakota see a need for a nationwide injunction, and one of the Judges agrees about that need, let's have one while EPA and the Corps replace the current rule with one that is consistent with the substance of the Supreme Court's decision.

But if the Supreme Court's mandate in Sackett is as clear as the plaintiffs say it is then what is to be gained by having a District Court agree in the context of a challenge to a regulation that everyone agrees needs to be replaced? Do the plaintiffs really think that EPA and the Corps will be swayed by what a District Court Judge says in a way different than they are reacting to the Supreme Court? Relatedly, I note that Ms. Hess reports that an EPA Senior Advisor is using the term surgical update to describe what is being done. I guess there's nothing wrong with using that term but I can't believe that EPA or the Corps think that the surgery required is anything but major.

I mentioned to Ms. Hess that the plaintiffs' demands may be about gooses and ganders. Even after the Biden Administration EPA said it would replace the Trump Administration EPA's Waters of the United States rule, plaintiffs who had challenged the rule still sought to vacate it in the meantime. On reflection, instead of trotting out the poultry I should have said that two wrongs don't make a right.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.