• Mark Ryan

More Litigation and a WOTUS Litigation Update

Waterkeeper has filed an NOI under the ESA challenging EPA's recent policy on enforcement discretion during the pandemic. See my March 30 Blogpost for more on the policy. The NOI lists suspension of NPDES sampling as a possible harm to listed species. Because agencies in general, and EPA in particular under the CWA, enjoy broad enforcement discretion, it will be interesting to see if this lawsuit sticks. The courts have historically been very deferential to EPA on CWA enforcement, and may be inclined to be more so during a pandemic. Here's a link to the NOI:

Meanwhile, the Sacketts and a large collection of industry lobby groups have filed motions to intervene in the WOTUS challenge filed by some of the states and two municipalities in the N.D. of California. The industry groups include the American Farm Bureau, the Chamber of Commerce, National Association of Homebuilders and many others. I looked at the docket sheet this morning on Pacer, and I've never seen so many pro hac vice motions. I would love to see a summary of the total attorney billings to the WOTUS litigation over the last five years. It would probably fund a small national government. With numerous states and NYC on the other side, the N.D. Cal. case is shaping up to be a battle of the Titans.

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Sackett 9th Circuit Oral Argument

Remember Sackett? Yes, that Sackett. Well, it's still alive after all these years, at least until the the 9th Cir. rules. [Full disclosure, I worked on the Sackett case while at EPA.] Quick summary.

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