Search
  • Mark Ryan

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
.pdf
Download PDF • 149KB


If you would like to receive email notifications of new blogposts, go to the signup button above, leave your email, and you'll be alerted to updates.

26 views0 comments

Recent Posts

See All

Quick Presidential Action on WOTUS

As expect, the ship is turning directions under the new Biden administration. In one of his first executive orders entitled "Executive Order on Protecting Public Health and the Environment and Restori

New Fifth Circuit Decision

The case below follows a long line of 505(b)/309(g)(6) cases addressing whether the state law is similar enough to the CWA to provide a bar to federal court prosecution. The courts have frequently rea

Dave Ross Interview in E&E

All of us who work in the CWA know the name Dave Ross. He headed up the EPA Office of Water under the Trump administration. Regardless of what you think of the work he did, he was by any measure produ

© 2016 by Ryan & Kuehler PLLC.

  • Facebook Basic Black
  • LinkedIn Basic Black
  • Twitter Basic Black