INSIDE EPA: Judge Urged To Stay Decision Reviving CWA Jurisdiction Rule In 26 States
A coalition of industry groups is calling on the judge who reinstated the Obama-era Clean Water Act (CWA) jurisdiction rule in 26 states to stay his decision while the organizations pursue an appeal, as they plan to argue for either overturning the order or limiting the decision’s scope to an unspecified smaller number of states.
In an Aug. 20 filing, a wide-ranging alliance of industry associations asks Judge David C. Norton, of the U.S. District Court for the District of South Carolina, to voluntarily stay his injunction that scrapped the Trump administration’s stay of the 2015 CWA rule. They argue that the order is likely to be overturned on appeal because it is overbroad and ignores their claims that the jurisdiction standard is fundamentally flawed.
“Generally speaking, the public interest is served by preventing the enforcement of unlawful (and especially unconstitutional) regulations, not by bringing them into effect,” the industry groups say.
The Trump administration has yet to formally respond to Norton’s Aug. 16 decision in South Carolina Coastal Conservation League (SCCCL), et al., v. Andrew Wheeler, et al. A spokesperson for EPA — which jointly crafted the CWA rule with the Army Corps of Engineers — said earlier on Aug. 20 that “EPA and the Army will review the order as the agencies work to determine next steps.”
But the administration did give a preview of its eventual arguments against the injunction in an Aug. 20 brief to the federal district court for the southern district of New York, which is hearing two still-pending suits over the delay. In a footnote to their brief, which is a reply in support of summary judgment in the two linked cases, EPA and the Corps say Norton’s decision “employed sparse legal analysis, among other things failing to review all factors relevant to entry of an injunction, including the balance of harms and the public interest.”
