Environmental -- 2019

Georgia v. Wheeler   (S.D. Ga.)

Challenge to WOTUS rule

In 2015, a coalition of states led by Georgia sued the U.S. Environmental Protection Agency (EPA) to challenge an EPA regulation governing jurisdictional "Waters of the United States" (WOTUS) under the Clean Water Act. Soon after Georgia filed suit, the court stayed the litigation while a separate federal appellate court asserted jurisdiction to resolve the case. In January of 2018, the U.S. Supreme Court ruled that challenges to the WOTUS rule should be heard in federal district courts. The Georgia district court thereafter reopened the case to allow Georgia's suit to proceed.

The NAM's litigation coalition moved to intervene in the case to bring the voice of manufacturers to the case. The 2015 WOTUS rule defines which waters and land areas require a permit under the Clean Water Act for discharges of pollutants to those areas. The rule’s definitions and prohibitions are complex and vague, and often require case-by-case determinations by the agencies. Manufacturers will be required to undertake expensive and laborious efforts to determine whether landscape features on their property are jurisdictional. Penalties for unpermitted discharges (which can include simply moving dirt or mud without a permit) are tens of thousands of dollars per day, per violation.

On July 10, 2018, the Court granted the NAM's intervention. On August 31, 2018, the NAM filed its motion for summary judgment with the court, and on September 26, 2018, filed a motion for a nationwide injunction against the rule. In a major win for manufacturers, the court on August 21, 2019, invalidated the rule on procedural and substantive grounds, including that the regulation seeks to impose federal jurisdiction beyond the limits imposed by the Clean Water Act.

Related Documents:
NAM brief  (December 24, 2018)
NAM Motion  (September 26, 2018)
NAM Motion  (August 31, 2018)
NAM Complaint  (June 29, 2018)
NAM Motion  (June 29, 2018)