• Mark Ryan

SJ Motions Filed in the Dist. of S. Carolina WOTUS Litigation

The plaintiff enviro groups and the United States have exchanged summary judgment motions in the Dist. of S. Carolina WOTUS-challenge case, which is one of several cases pending around the country challenging the 2020 WOTUS rule. Reading DOJ's brief, I'm reminded of the current political debate between the major parties. They're both talking about the same things, but using completely different interpretations of the facts (or different facts) and each accusing each other of misrepresenting the other's arguments.

The DOJ brief is notable in many respects, but I'll touch on a few of what I think are the highlights. First and foremost, EPA is arguing that its 2020 WOTUS rule is a reasonable interpretation of an ambiguous statutory provision, and is therefore entitled to Chevron deference. No surprise there. This argument, however, hinges on EPA's belief that is not bound by the Kennedy test in Rapanos, arguing that Rapanos dictates what the agency cannot regulate, not what it must regulate. Br. at 1. EPA further argues that eight Supreme Court Justices have rejected the significant nexus test. Br. at 17. That's a new one. As I have argued in the past, no court of appeals has bought that argument, so they're preserving it for SCOTUS. I doubt they'll succeed in the lower courts.

EPA claims it relied on the science to exclude waters, Br. at 19, 24, but that argument seems specious at best. The connectivity report developed under the Obama administration clearly showed that upstream intermittent and ephemeral waters significantly affect downstream water quality. EPA is making a policy/legal call despite that science. They should just own it rather than try to argue around it.

Finally, they argue that WOTUS is a subset of the "Nation's Waters" a term used briefly in section 101(a) of the Act. Br. at 15. This is a new legal argument forwarded by the Trump administration that has never been vetted by the courts since the Act was passed in 1972. It's a clever argument, but supported by little other than standard statutory-interpretation arguments. There's almost nothing in the statute backing it up. It will be interesting to see how the courts address this one.

Pages of briefing are devoted to the waste treatment exclusion, which has been on the books for years, but which has largely avoided much litigation. The new definition of the WTE is broader, of course, than previously, but not hugely so. I think the biggest issue with the the WTE is that it's not clear if one can convert waters to non-waters by creating a treatment pond in the middle of a creek or other water body. It will be interesting to see how that issue plays out.

DOJ argues, as almost all defendants do, that plaintiffs lack standing. Br. at 40. I doubt they'll succeed on that issue.

Finally, a little inside baseball. A former DOJ colleague pointed out to me that no one from Main Justice or EPA listed their names on the brief. That is very unusual. I'm guessing no one in D.C. wanted to have their names on this. That says something.

Here are copies of the briefs:

WOTUS - SC pltf MSJ 7:10:20
Download PDF • 550KB

WOTUS - SC EPA MSJ:opp br. 8:24:20
Download PDF • 415KB

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