The Supreme Court today refused to delay a case on whether a challenge to the waters of the U.S. (WOTUS) rule should first go through district courts or be brought straight to the court of appeals.
After Trump issued his executive order on Feb. 28 directing the U.S. Environmental Protection Agency (EPA) to begin the process of rescinding or revising the controversial rule, the Justice Department asked the Supreme Court not to move forward on this case. The request was made so that the administration could decide whether to withdraw or recraft the rule to produce a workable solution that ensures environmental protection without hindering economic growth.
While the Supreme Court has decided not to suspend this case, its decision should not affect how the Trump administration moves forward with replacing the WOTUS rule. The current proceeding only impacts which court will hear the challenge to the WOTUS rule, not its legality.
The federal Sixth Circuit of Appeals issued a temporary stay of the WOTUS rule last year. If the Supreme Court rules that the case must first go through district court, then this nationwide stay would be overturned.
The next step is for the Supreme Court to set a schedule to consider hearing this jurisdictional case.
In the interim, the nationwide stay on the WOTUS rule remains in effect.
At the same time, the EPA and Army Corps of Engineers are expected to continue to review the current WOTUS rule and could have a new one finalized by the end of the year. We’ve previously outlined how this process will likely move forward to help members understand what they can expect.