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EPA Moves to Dismiss 401 Cert. Rule Challenge

On September 14, EPA filed a motion to dismiss an enviro group challenge to the new 401 cert. rule on the grounds that the challenge is not ripe, and the rule can only be challenged under the APA in the context of a particular application of the rule. EPA also challenges standing in the case. On October 5, the EPA filed its reply brief. The latter brief is attached below. See my July 15 blogpost for a discussion of the filing of the complaint in this matter.


In my earlier blogposts, I have argued that the new rule ignores clear Supreme Court precedent, and will likely be overturned. If what EPA argues is true, then almost any APA challenge to a rulemaking would be unripe until the rule was actually applied. How is this different from the WOTUS rule? If a newly-promulgated rule is unauthorized by the underlying Act or is an arbitrary and capricious interpretation of the Act, doesn't the APA allow judicial review of a final agency action, assuming plaintiffs have standing? It will be interesting to see what the court does with this.

EPA 401 cert. opp br. 10.5.20
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