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Petitioners seek hold in WOTUS case while Supreme Court mulls venue

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Petitioners seek hold in WOTUS case while Supreme Court mulls venue

While the U.S. Supreme Court mulls a procedural issue in the legal battle against the Clean Water Rule, the petitioners would like the matter put on hold in a lower court, according to a Jan. 23 filing with the U.S. Court of Appeals for the 6th Circuit.

The Supreme Court agreed Jan. 13 to review a jurisdictional issue in the litigation of the Clean Water Rule, which is commonly referred to as the Waters of the U.S., or WOTUS, rule. The high court will examine in its April sitting whether the legal challenge filed by more than 100 petitioners should be heard in the federal appeals court or in a lower district court. A decision could follow in June.

In the meantime, the National Association of Manufacturers, or NAM, would like the underlying legal challenge held in abeyance. The challengers argue that the U.S. EPA and the U.S. Army Corps of Engineers created a regulation that was overly broad and burdensome. The rule was stayed by the 6th Circuit in February 2016.

NAM argues that continuing with briefing in the 6th Circuit would waste court resources and end up being unneeded if the Supreme Court decides a different court should review the rule.

Another factor in the ongoing legal battle is the impact of the new Trump administration. Jeff Holmstead, an attorney for Bracewell LLC who served from 2001 to 2005 as assistant administrator for the EPA's Office of Air and Radiation under Republican President George W. Bush, said in a Jan. 23 interview that he expects to see motions filed by the federal government "sometime this week" to various courts asking to hold cases pending against EPA rules such as the Clean Power Plan and WOTUS. Holmstead said the court is typically willing to grant these motions.

That has not happened yet in the WOTUS case, as the motion to hold the matter in abeyance was filed by NAM, and there has not been such a request in the Clean Power Plan case as of noon ET Jan. 25, either.

Litigants of the EPA's new source performance standards for fossil fuel power plants, which is a related rule to the Clean Power Plan, asked the U.S. Court of Appeals for the District of Columbia Circuit in December 2016 to briefly pause briefing in the case because the change in administration could significantly impact the rule. The D.C. Circuit denied the request to extend the briefing schedule to accommodate the presidential transition Jan. 4, and briefing has continued as previously planned.

NAM focuses on the waste of court resources in its request to hold the 6th Circuit case in abeyance, but also notes pledges by President Donald Trump on the campaign trail to reconsider WOTUS. The White House also released its America First Energy Plan, which specifically noted plans to eliminate harmful and unnecessary regulations such as WOTUS.

"The new administration's statements raise the possibility that, even assuming the Supreme Court holds that this court has jurisdiction, this court will never need to address the current rule in the current procedural posture," NAM wrote.