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Environmentalists Want to Retain Protective Suit Over EPA’s Delay of 2015 CWA Utility Effluent Rule
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Environmentalists Want to Retain Protective Suit Over EPA’s Delay of 2015 Clean Water Act Utility Effluent Rule


Environmentalists are asking the U.S. Court of Appeals for the District of Columbia Circuit to retain their “protective” suit over EPA's delay of its 2015 Clean Water Act (CWA) utility effluent rule. They are also asking the court to reject EPA’s request to transfer the suit to the 5th Circuit. Petitioners in Clean Water Action, et al., v. EPA filed a March 2 response brief opposing EPA's bid to transfer or dismiss their appellate suit over the agency's expired “interim” stay of the 2015 power plant effluent limitation guidelines (ELG) rule. This comes despite that case being stayed while a district court considers the same issue. They say the case should remain on hold in the D.C. Circuit until the lower court case is resolved.


Early in 2017, EPA stayed compliance deadlines in the ELG rule indefinitely while it weighed reconsideration of the rule. The decision drew court challenges from environmental groups in both district and circuit court because of ambiguities in the CWA's judicial review provisions that send lawsuits over water policies to different courts depending on the types of agency action involved.


The appellate-level litigation has been stayed while the district court considers the challenge there, with environmentalists trying to keep the suit with the lower court while EPA and its industry allies say the proper venue is the 5th Circuit, which is hearing facial challenges to the ELG itself.


Those questions are complicated by the fact that EPA in September revoked the indefinite delay, which was crafted under its Administrative Procedure Act (APA) authority to delay the effective dates of already-issued rules and other action pending judicial review, “when justice so requires.” EPA replaced it with a more targeted CWA-based rule that amended the ELG's enforcement dates for certain requirements rather than delaying the entire policy.


That rule drew another set of district and circuit challenges, and the D.C. Circuit recently transferred the corresponding appellate petition to the 5th Circuit, holding that the two cases are so deeply related that they must be considered together.


EPA is now arguing that the same precedent requires transferring the older suit to the 5th Circuit as well, or to dismiss it outright. But, Clean Water Action and its allies say that since the transferred case was based on the CWA, rather than the APA, different standards apply.

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