• Mark Ryan

Motion to Stay filed in California WOTUS Challenge

We all knew this was coming. The group of states and cities that filed a WOTUS rule challenge in the N.D. of California earlier this month have filed a motion for a preliminary injunction or a stay of the rule. (See my May 4 Blogpost for more on the filing of that complaint.) The 40-page motion makes many of the arguments we've already seen in the complaints filed so far (the new rule ignores the scientific record, ignores the CWA's purpose to protect the nation's waters, relies on the wrong Rapanos standard, etc.) As I've discussed in the past, I think many of these arguments reflect significant problems with the new rule, and I would not be surprised if the rule were stayed.

Plaintiffs are asking for a nationwide stay. See brief at pp. 39-40. As I have written in the past, I think that may be a bridge too far given the Supreme Court's recent ruling on nationwide stays issued by District Courts.

Also of interest in this brief is the harm alleged, starting at page 29. It's worth a read. As you all know, one needs to show irreparable harm in order to obtain a P.I. The plaintiffs here argue, among other things, that downstream states will take the brunt of pollution flowing from upstream states because the rule excludes interstate waters, citing Arkansas v. Oklahoma. It will, needless to say, be interesting to watch what the court does with this. The rule is scheduled to go into effect on June 22.

Here's a link to the brief:

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