• Mark Ryan

DOJ Moves to Consolidate a Piece of the WOTUS Litigation

There are two WOTUS cases pending in the W.D. of Washington, one by a collection of enviro groups and another by the Washington Cattlemen's Association. DOJ is defending the government in both cases, and has moved to consolidate the two cases, arguing judicial economy and the need to avoid possibly inconsistent rulings. Both cases are before Judge Coughenour, who is a very no-nonsense judge with a penchant for very brief written decisions. And he frequently sides with environmental groups despite being a Reagan appointee. I suspect the judge will grant the motion despite opposition by the enviro groups. The plaintiffs in the two cases are seeking different results - - the Cattlemen think the 2020 WOTUS rule is too broad and the enviros think it far too restrictive - - but the underlying issues are the same: is the 2020 WOTUS rule a fair interpretation of the CWA.

Also of interest in that case is the pending motion by Patagonia to intervene. It's not unusual for industry groups or even individual companies to intervene in environmental lawsuits, but a clothing company? DOJ is challenging standing. It'll be interesting to see what the court does with that one. Patagonia is known for contributing generously to environmental causes, so I suspect they would bring some talent to the case if they're allowed in.

Other WOTUS news: Sen. Tammy Duckworth and seven other Democratic Senators yesterday introduced a resolution denouncing the EPA's rollbacks on the CWA. It will obviously get no traction in the Republican-controlled Senate, but that could change if the Senate flips in November. Polls are showing a very tight race. Stay tuned.

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