• Mark Ryan

EPA Files an Interesting Brief in the Sackett case

EPA today filed its response brief in the Sackett appeal, and it's an interesting one. You will recall that EPA withdrew its administrative order against the Sacketts and then moved to dismiss the Sacketts' appeal of the case EPA had won in District Court on the validity of the order. The Ninth Cir. then surprisingly denied the motion to dismiss. (See my Blogposts from March 30, April 1, 9 and 16 and May 22 for more background).

EPA's brief renews the mootness argument that it raised in its failed motion to dismiss. Its merits argument, however, is the interesting one. Starting at page 32 of the brief, EPA argues that the Kennedy test is the law of the Circuit, and EPA met the significant nexus test in issuing the compliance order to the Sacketts. The new WOTUS rule, which went into effect on Monday, rejects the Kennedy test in favor of the plurality's RPW test. I suppose EPA will argue that it's entitled to reinterpret the CWA under Brand X, but the position it takes in this brief seems to contradict its view of the law in the N.D. Cal. case. They're clearly trying to thread a needle here, but I'm not sure they're succeeding. This brief will likely be exhibit A in some of the enviro challenges to the new rule. It'll be interesting to see how EPA deals with it.

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