Earlier in 2017, the US Supreme Court decided it would hear the case about which level of court had the authority to hear a challenge to the Obama Administration’s rule expanding federal jurisdiction over waters. In the interim, after the new administration began to settle, President Trump issued a new Executive Order that began the process of unwinding the rule. Because the intent of the Administration is to rescind the Obama-era rule and replace it with a new rule, the Administration moved the Supreme Court to hold the briefing in abeyance until the new rule is issued.
The Supreme Court, however decided that whenever the new WOTUS rule is issued, all parties need to know which court has jurisdiction to hear any challenge to the rule. It is likely that the decisions to rescind the Obama rule and the substance of the new rule are each likely to end up in litigation. The Court agreed that there was no sense in delaying the answer to this question. The case will proceed as scheduled.
For more information, contact Scott Berry at [email protected] or (703) 837-5321.