Just before the July 4th holiday I was wondering what opponents to EPA's and the Army Corps of Engineers' now moribund Waters of the United States regulation hoped to gain by having a Federal District Court Judge in the Lone Star State opine on the limits of EPA's and the Corps of Engineers' Clean Water Act jurisdiction.

I'm still wondering.

After all, the nation's highest court has already provided a pretty clear, binding on the Executive Branch unless and until Congress says otherwise, opinion on what the Executive Branch can and can't do that EPA and the Corps say they are addressing in a revision of their ultimately anything but durable Waters of the United States regulation.

The very next business day the Sixth Circuit Court of Appeals weighed in, granting EPA's motion to stay a challenge by the Commonwealth of Kentucky that is basically identical to the challenges pending in Texas and North Dakota.   

EPA's motion was not opposed by Kentucky but there is every reason to believe that an identical motion would be opposed by the plaintiffs in the Texas and North Dakota cases.

Will the Fifth and Eighth Circuit Courts of Appeals agree with the Sixth Circuit if the same request reaches them?  Who knows?  More importantly, as I asked last week, why does anyone care?  As was the case when EPA and the Corps issued WOTUS regulations in the Obama, Trump, and Biden Administrations, it is the imminent regulation that matters, not the past regulations.  That regulation will most certainly also be the subject of lawsuits and the outcomes of those lawsuits will have consequences, unlike the ones pending in Texas and North Dakota today.

"The U.S. Court of Appeals for the 6th Circuit, without comment, July 3 granted EPA’s recent motion seeking abeyance in the suit Commonwealth of Kentucky v. EPA, et al., appearing to agree with the agency’s argument that the upcoming WOTUS rule would help narrow any future litigation."

“The Agencies’ forthcoming final rule is likely to affect the ultimate resolution of this appeal in that it may narrow the issues that the Court chooses to resolve. An abeyance would allow the Parties time to assess the new rule and determine how best to proceed with the case,” EPA said in its June 30 unopposed motion seeking a stay.