Written by: Amie Alexander, JD/MPS Candidate, William H. Bowen School of Law

Industry groups filed an amicus brief on June 8, 2018 supporting a coalition of states’ motion for summary judgment in an action challenging the Environmental Protection Agency’s and U.S. Army Corps of Engineers’ regulation defining “waters of the United States.” You can read the amicus brief in its entirety here.

Industry groups filing the brief (hereinafter “Amici”) represent large portions of construction, real estate, mining, manufacturing, forestry, agriculture, and energy sectors. Agricultural organizations joining were the American Farm Bureau Federation, National Cattlemen’s Beef Association, National Corn Growers Association, National Pork Producers Council, and the U.S. Poultry & Egg Association.

Amici stress that the “waters of the United States” rule (hereinafter “the Rule”) suffers numerous fatal flaws. They argue that the agencies failed to reopen the comment period after making substantial changes to the Rule, ignored differences between wet and dry climates, and mistakenly relied on Justice Kennedy’s concurring Rapanos v. United States opinion. Amici argues “by purporting to extend CWA over land features with only the most distant and attenuated connection to anything resembling a navigable water – the agencies have exceeded their authority under the Commerce Clause.” States addressed these arguments in the underlying suit. Amici focuses “on three core points that are of particular concern to them as private participants in the notice-and-comment process and as members of the regulated community.”

First, amici argues that the promulgation of the Rule was procedurally defective. For example, amici points to “an unprecedented propaganda campaign” by the agency to promote the Rule and that the agency had engaged in illegal lobbying efforts against legislative efforts to stop the Rule. Second, amici argues the Rule expands EPA’s jurisdiction beyond what was granted in the Clean Water Act. For its final argument, amici argues that the Rule is unconstitutional, as it constitutes a violation of the Commerce Clause and the Due Process Clause.