Greens weaponize high court’s WOTUS ruling in other lawsuits

By Amanda Reilly | 01/25/2018 01:28 PM EST

This week’s Supreme Court decision on the proper court venue to challenge the Obama-era Clean Water Rule is cropping up in unrelated cases.

The high court ruled unanimously Monday that challenges to the Clean Water Rule, which aims to clarify which wetlands and streams receive automatic federal protection, belong in federal district court (Greenwire, Jan. 22).

Environmentalists wielded the opinion yesterday in an ongoing legal battle over curbing toxic wastewater discharges from power plants.

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At issue in that case is the Trump EPA’s decision to delay the Obama administration’s 2015 standards requiring power plants to install and operate treatment technology to remove heavy metals from wastewater discharges.

As was the case with the Clean Water Rule — also known as the Waters of the U.S. rule, or WOTUS — environmentalists and the Trump administration have sparred over where the suit should play out.

Both the administration and industry have sought to move the suit to the Louisiana-based 5th U.S. Circuit Court of Appeals, where challenges to the original 2015 rule were filed.

But attorneys from Earthjustice argued yesterday the Supreme Court’s WOTUS decision affirms that the litigation should be heard in district court.

In a notice filed in the U.S. District Court for the District of Columbia, they argued that the Clean Water Act dictates that challenges belong in district court because the delay in the rule does not impose any new restrictions on discharges of pollutants. Monday’s Supreme Court decision was based on the same portion of text in the Clean Water Act.

"Plaintiffs respectfully request that the court consider the decision," Earthjustice implored the court on behalf of several environmental groups.

The jurisdictional battle is one piece of a broader legal fight over the effluent standards for power plants.

Last spring, EPA Administrator Scott Pruitt announced his agency would indefinitely delay the standards. EPA followed up in September by imposing a two-year delay in key deadlines from November 2018 to November 2020 (E&E News PM, Sept. 13, 2017).

Greens challenged the initial stay and then sought to add the two-year delay to their suit in the D.C. district court. They say EPA is acting outside the authority given to it by Congress.

The Trump administration has opposed adding the two-year delay to the complaint and argues the lawsuit is now moot because EPA withdrew the initial stay (E&E News PM, Sept. 21, 2017).

The case has been assigned to Judge Dabney Friedrich, who was confirmed to the D.C. district court in a 97-3 Senate vote in December.

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