The NAM intervened in a legal challenge by environmental groups to the EPA’s delayed implementation of the 2015 rule governing jurisdictional “Waters of the United States” (WOTUS) under the Clean Water Act, and to that rule’s jurisdictional exception for waste treatment systems. After a change in presidential administrations in early 2017, the EPA delayed the effective date of the 2015 WOTUS rule until February 2020. The purpose of that delay was to preserve the pre-rule status quo while the EPA proposes and finalizes a replacement WOTUS rule. A coalition of environmental groups sued to challenge that delay. On November 26, 2018, the court found that the delay failed to comply with applicable procedural requirements. The court invalidated the delay rule, thereby causing the 2015 WOTUS rule to come back into effect.
After this procedural win, the environmental plaintiffs then turned their attention to the merits of the 2015 WOTUS rule. In May of 2019, the plaintiffs filed a motion for summary judgment to seek to invalidate the 2015 WOTUS rule’s exception of waste treatment systems from Clean Water Act jurisdiction. Waste treatment systems are essential elements of various industrial operations. They are used in mining, power generation, pulp and paper mills, manufacturing, infrastructure, and a host of other activities. Waste treatment systems prevent pollution by treating, settling, retaining, or removing pollutants before being discharged into rivers, lakes, streams, or other waters. The NAM’s litigation coalition filed a motion opposing the plaintiffs’ summary judgment motion. In our brief we explained the environmental benefits of waste treatment systems and the Clean Water Act’s express allowance and process for creating and issuing permits for those systems. We also attacked the plaintiffs’ standing to bring the challenge.
In a great win for manufacturers, the court on November 25, 2019, dismissed the plaintiffs' case for lack of standing.