• Mark Ryan

Sackett Update

You will recall that the latest chapter of the long Sackett saga is that EPA filed a motion to dismiss the appeal as moot given that the old WOTUS rule, which is the basis of the Sackett challenge, is no longer on the books. (For more on Sackett, use the search function above to look for "Sackett" and you'll see my many prior blogposts on this case.)

On March 8, the Ninth Circuit asked the parties for supplemental briefing on "the relevance, if any, of the Navigable Waters Protection Rule: Definition of “Waters of the United States,” 85 Fed. Reg. 22,250 (April 21, 2020), to this appeal." See attached order below.

The parties responded with briefs on March 26 and April 9. EPA is taking the position that the new 2020 rule is not relevant because it does not apply retroactively. PLF, as one might expect, argues that the new rule is relevant on several grounds. I don't see the PLF prevailing here, but I don't think that's their goal. They want to get back in front of the new conservative Supreme Court majority, where they will likely have a sympathetic ear. Will EPA rescind the 2020 rule in time to argue deference? Would they get deference for pulling the 2020 rule if no new rule is yet in place? Would the Supreme Court grant cert. if EPA were in the middle of a rulemaking? Time will tell.

The parties' briefs are attached below.

Sackett - PLF brief 3.26.21
Download PDF • 137KB
Sackett - EPA brief 4.9.21
Download PDF • 155KB
Sackett - 3.8.21 Order
Download PDF • 135KB

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