Appeals court stops EPA’s WOTUS rule with preliminary injunction

By Craig Regelbrugge and Davi Bowen / AmericanHort

Today the Sixth U.S. Circuit Court of Appeals in Cincinnati issued a nationwide preliminary injunction that prevents the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers from implementing the so-called Waters of the U.S. (WOTUS) rule while the court reviews the various legal matters surrounding the regulation.

The motion for the preliminary injunction was filed by 18 states. In the ruling, Judge David W. McKeague said, “The stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing.”

The circuit court of appeals’ decision follows a preliminary injunction issued Aug. 28 by a U.S. District Court in North Dakota. The judge in that case clarified on Sept. 4 that the injunction only applied to the 13 states that were plaintiffs in that litigation.

One of the reasons the district court failed to issue a nationwide injunction was out of deference to the Sixth Circuit, where many, but not all, of the legal challenges to the WOTUS rule have been consolidated by the U.S Judicial Panel on Multidistrict Litigation.

The legal challenges surrounding the WOTUS rule will continue, but today’s ruling means that at least for now, the rule cannot be implemented or enforced. The ruling passes no judgment on the technical merits of the rule or the litigation.

AmericanHort will continue to monitor developments around WOTUS-related litigation, as well as legislation efforts to compel EPA and the Corps of Engineers to withdraw the rule.

The writers are on AmericanHort’s government relations staff.