Federal District Court Judge Gregory Van Tatenhove has dismissed a lawsuit brought by the Commonwealth of Kentucky and various industry groups challenging EPA's eighth attempt to determine the jurisdictional reach of the Clean Water Act. Judge Van Tatenhove ruled that neither Kentucky nor the industry groups yet have standing to sue over EPA's most recent Waters of the United States regulation.   

In Kentucky, and in Texas and North Dakota, the Department of Justice and EPA argued that the plaintiffs currently lack the standing to sue. The Judges in Texas and North Dakota rejected in whole or in part the Federal Government's standing arguments.

Judge Van Tatenhove disagrees. He says that the plaintiffs may have standing to sue in the Fifth and Eighth Circuits but they don't in the Sixth Circuit. The Judge points to differences between the showings made by some of the plaintiffs in the other cases to establish their standing to sue and the showings made by the plaintiffs in the Kentucky case. I wonder whether those differences will be perceived to be sufficient to thwart suggestions we now have a split in the Circuits on what is enough to establish standing to challenge a Federal regulation.

As if all of this isn't messy enough, the North Dakota Judge has given the plaintiffs in that case the opportunity to supplement their papers on the question of whether a nationwide injunction of the EPA regulation is in order. That would mean that EPA's Waters of the United States regulation would not be in effect in Kentucky (or anywhere else), at least for a bit, despite the Kentucky Federal District Court's dismissal of a very similar challenge to the very same regulation. That was the fate of EPA's seventh attempt to determine the jurisdictional reach of the Clean Water Act.

Which brings me to what I think is the most interesting aspect of the Judge's opinion: the invocation of 1974 Supreme Court precedent in support of the doctrine of judicial restraint, something which has been in very short supply over the past three decades or so of Executive Branch activity relating to the Clean Water Act.

Judge Van Tatenhove references Congress's recent Congressional Review Act resolution overturning EPA's regulation which President Biden has said he will veto. He says that Congress's action and the President's promise to "weigh in" on it "encapsulates the risk that  . . . .the Court could 'distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing government by injunction' (citing the 1974 case)"  by hearing a challenge to EPA's Waters of the United States regulation. This isn't a concern that was shared by the several Judges that heard challenges to EPA's sixth and seventh attempts to determine the jurisdictional reach of the Clean Water Act, let alone the Texas and North Dakota Judges this time around.

Perhaps it would be easier to defer to the Legislative Branch if Congress revisited the half century old Clean Water Act, as it has all of the other major environmental laws of that era, instead of merely criticizing the Executive Branch for attempting to clear up the confusion Congress created back then.

So we wait to see whether President Biden does actually veto Congress's resolution, and to see what the North Dakota Judge does, and, perhaps most importantly, to see whether the Supreme Court's imminent decision in Sackett v. EPA resolves the constitutionality of the "significant nexus" basis for Clean Water Act jurisdiction.  But, for now, EPA's most recent WOTUS regulation remains the law in 48 of the 50 states. 

He adds that Congress’ recent passage of a Congressional Review Act (CRA) resolution underscores the ripeness concerns within this case, noting that “certain developments, pleadings, or allegations could ripen this matter into a controversy fit for judicial review,” but at the moment the groups’ uncertain concerns “are better suited for ‘other governmental institutions.’”