9 more states sue Obama admin over hot-button rule

By Annie Snider | 06/30/2015 01:00 PM EDT

Nine more states today sued the Obama administration over its controversial water rule, bringing the total to 27 states now challenging the effort to expand the number of streams and wetlands that receive automatic protection under the Clean Water Act following two muddled Supreme Court decisions.

The latest lawsuit was filed by the attorneys general of Georgia, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah and Wisconsin. It was filed in U.S. District Court for the Southern District of Georgia.

The suit argues that the Waters of the U.S. rule violates the Clean Water Act, the Constitution and the Administrative Procedure Act.

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"This case involves an attempt by two agencies of the federal government to usurp the States’ primary responsibility for the management, protection, and care of intrastate waters and lands," the suit says.

The case follows three multistate suits filed yesterday, the first day that court challenges could be lodged against the rule (Greenwire, June 5). Many more lawsuits, including from industry groups, are expected in the coming days.

All but three of the attorneys general suing so far are Republican. The three Democrats are from Kentucky, Missouri and Mississippi. New Mexico’s Environment Department and Office of State Engineer — both overseen by Republican Gov. Susana Martinez — signed on to one suit, although its Democratic attorney general did not.

Unlike the Clean Air Act, which requires that challenges be filed at the U.S. Court of Appeals for the District of Columbia Circuit, the Clean Water Act allows challenges to be filed in federal district courts across the country. (In some cases, challenges can be filed directly to appeals courts, but those cases are limited.)

That means challengers are carefully choosing districts that might be sympathetic to their position, also knowing that cases could be consolidated down the road.

So far, challenges have been filed in the Southern District of Georgia, the District of North Dakota, the Southern District of Ohio, the Southern District of Texas and the 5th U.S. Circuit Court of Appeals — the last a dual filing.

Although U.S. EPA won’t directly comment on active lawsuits, an agency spokeswoman yesterday defended the water rule and the process by which it was developed.

"In developing the rule, the agencies held more than 400 meetings with stakeholders across the country, reviewed over 1 million public comments, and listened carefully to perspectives from all sides," spokeswoman Monica Lee said by email. "EPA and the Army also utilized the latest science, including a report summarizing more than 1,200 peer-reviewed, published scientific studies which showed that small streams and wetlands play an integral role in the health of larger downstream water bodies."

Click here for the nine-state lawsuit.

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