Here's the latest in an issue we've been following, the myriad legal challenges to the EPA's recently-adopted rules expanding the scope of the definition of "waters of the United States" under the Clean Water Act.
The U.S. District Court for the District of North Dakota, one of several District Courts considering the plethora of lawsuits challenging the rule, has issued an Opinion and Order Granting Plaintiffs' Motion for Preliminary Injunction, holding that the arguments of the several states which sued, are likely to succeed because the rule is "likely arbitrary and capricious."
The Rule asserts jurisdiction over waters that are remote and intermittent waters. No evidence actually points to how these intermittent and remote wetlands have any nexus to a navigable-in-fact water.Slip op. at 12.
There's more, of course, and you should read the entirety of the Order, if this sort of thing is your bag. And others are following this issue more closely than we are, so stay tuned for more and better analysis, and what this means in the big picture. At least two interesting issues remain:
Stay tuned, as always.
- The procedural issues: are the multiple cases which challenge the WOTUS rule subject to consolidation, to be heard by a single District Court, or even directly by the Sixth Circuit?
- If not, what is the effect, if any, of this ruling, and how will it influence the other courts to consider the issue?