From SLMA's environmental counsel at Kilpatrick Townsend:
On January 22, 2018, the U.S. Supreme Court ruled that challenges to the Obama-era WOTUS Rule, defining the federal government's authority under the Clean Water Act, belong at the district court rather than appellate court level.
This decision creates significant uncertainty regarding the fate of the Rule for several reasons. First, it removes the previously issued Stay of the effectiveness of the Rule that had been issued by the Sixth Circuit. The removal of the Stay allows the Rule to take effect in any jurisdiction that has not already been issued a Stay by a district court, e.g., 13 states in upper Midwest and Northwest.
Second, litigation will be splintered across the U.S. going forward which will likely create additional disparities regarding the impact of the Rule among states. We expect that opponents of the Rule will now seek a Stay, possibly nationwide, of the Rule via a petition to one or more of the district courts which had previously received appeals.
The Supreme Court's decision also increases pressure on EPA and the Trump Administration to finalize the pending rulemakings regarding the effective date and the reconsideration of the Rule.
In short, the decision creates considerable uncertainty for the regulated community.
The Waters Advocacy Coalition
, of which SLMA is a member, continues to advocate for withdrawal of the 2015 rule. Please let us know if you have any questions or need any additional information.