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"Several Supreme Court justices appeared skeptical of the Trump administration’s arguments on Wednesday that challenges to EPA's Waters of the U.S. rule should go straight to the appellate court level. The case before the Supreme Court involves a long-running and arcane legal dispute over the proper venue for challenges to the Obama administration rule, which defined which waters fall under federal jurisdiction. The Trump administration is working to repeal the regulation, also called the Clean Water Rule, but the Supreme Court earlier this year said it would hear the case nonetheless. A coalition of challengers — including the National Association of Manufacturers and other trade groups, 30 states and several environmental groups, including the Sierra Club — contend that WOTUS-related legal challenges should first be heard by the district courts before any appeal to the appellate courts. But the Trump administration — backed up only by the Natural Resources Defense Council and the National Wildlife Federation — said that WOTUS should qualify for legal exceptions included in the Clean Water Act action that call for certain cases to go directly to an appellate court. The two exceptions that apply to the WOTUS case, they say, involve issues related to effluent limitations as well as permit approvals and rejections. The justices peppered a DOJ attorney with questions about the scope of those exceptions and whether the WOTUS rule truly set a limitation that would trigger the exceptions. Chief Justice John Roberts said he was inclined to view WOTUS as merely a geographic definition of what bodies of water are subject to federal regulation, rather than a specific pollution regulation...The court did appear to have some concerns about the district court-first approach supported by the groups and states. Several justices questioned the efficiency of that approach, since lawsuits could be filed in several different courts at the same time, forcing potentially dozens of judges to have to wade through the entire rule. Justice Ruth Bader Ginsburg questioned whether it made sense to hear permit challenges at appellate courts but a broad challenge to WOTUS at the district courts. “One would think it would be the other way around,” she said. Ginsburg also questioned whether the point was moot, since EPA is close to repealing the Obama-era WOTUS rule...The Supreme Court likely will not issue its ruling until late November or December at the earliest. The public comment period on EPA’s proposed WOTUS repeal closed on Sept. 27, and it will likely take EPA several months at least to review and respond to those comments and finalize the repeal."

Posted October 12th, 2017
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