Despite the wishes of the Trump administration, the U.S. Supreme Court on Monday decided to continue hearing a legal challenge to the controversial Clean Water Rule (CWR), an environmental holdover from the Obama administration that Trump, Republicans and several industries oppose.
The high court said it denied a motion to hold in abeyance the briefing schedule in the case National Association of Manufacturers v. Department of Defense et al[No. 16-299]. The Republican administration had wanted the court action halted so it could pull back the rule for review and revision.
According to court records, the crux of the dispute is whether the Sixth Circuit Court of Appeals in Cincinnati erred when it held that it has jurisdiction under the judicial review provision of the Clean Water Act (CWA). The provision, in turn, requires that permits denied by federal agencies be reviewed by an appellate court.
Also at issue is whether the appellate court has the authority to decide petitions to review the Waters of the United States (WOTUS) Rule, even though the rule itself is not used to justify the issuance or denial of a permit, rather it was designed to clarify what constitutes WOTUS, and therefore protection under the CWA.
The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corp of Engineers (USACE) jointly promulgated the CWR and unveiled it in May 2015. In October of that year, the Sixth District Court issued a stay and blocked the CWR from being implemented.
In February, Trump signed an executive order instructing EPA and USACE to review the CWR. Although the order did not repeal the CWR outright, it kicked off a review and rulemaking process expected to extend into 2018.
The National Association of Manufacturers had asked the high court to dismiss the petitions before the Sixth Circuit Court and have the case remanded back to local district courts. But environmental groups and several states want the case to continue.
According to EPA, the proposed WOTUS definition would include all territorial seas, interstate waters and wetlands and all waters that are currently being used — or which were used in the past or which may be susceptible for use in interstate or foreign commerce — including all waters subject to the ebb and flow of the tide. It also includes certain impoundments, tributaries and adjacent waters, including wetlands.
Opponents of the rule worry that the rule is so broad it could be used to include ditches and ruts in dirt roads that captured rainwater.
Shortly before his confirmation as EPA administrator, Scott Pruitt vowed to quickly withdraw the CWR. Trump has also derided the rule as an example of federal regulatory overreach.
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