Environmental Regulation
Judge Rules Against Kentucky Challenge to Biden WOTUS Rule
Photo Courtesy U.S. Fish and Wildlife Service
A federal judge in Kentucky has denied the state’s request to block the Biden administration’s new regulation redefining federally regulated “waters of the United States” from taking effect within the commonwealth.
In a March 31 decision, U.S. District Court Judge Gregory F. Van Tatenhove wrote that Kentucky and a group of construction and other business organizations lacked legal standing to bring the case. He stated that “the claimed financial and sovereignty injuries are too speculative to constitute injuries in fact.”
In turning down the plaintiffs’ request for a preliminary injunction against the Biden rule, Van Tatenhove added, “Absent a certainly impending injury, the claims are not ripe, the parties do not have standing and they are unlikely to succeed on the merits of their claim.”
Kentucky Attorney General Daniel Cameron said in an April 3 statement emailed to ENR, “We are disappointed by the decision and are thoroughly reviewing the court’s opinion to determine next steps.”
The industry organizations were the U.S. Chamber of Commerce, the Associated General Contractors of Kentucky, the Home Builders Association of Kentucky, the Portland Cement Association and the Kentucky and Georgia Chambers of Commerce.
Environmental groups praised the judge's decision. Jim Murphy, National Wildlife Federation director of legal advocacy, said in a statement the ruling “is a critical first step to protect our health and natural heritage.”
The Kentucky decision follows two other recent federal court rulings regarding the Biden regulation.
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On March 19, a district court judge in Texas granted an injunction against the regulation. But it only bars the rule from taking effect in Texas and Idaho—the plaintiffs in the case.
Another WOTUS-related case is pending in a federal district court in North Dakota. The case, filed on Feb. 16 by 24 states, seeks to have the regulation struck down and also to block the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers from enforcing it in those states.
Officials and attorneys on both sides of the debate over the Biden Clean Water regulation are waiting for a ruling from the U.S. Supreme Court in the Sackett v. Environmental Protection Agency case. It is expected to deal with a further definition of the scope of federal regulation order various bodies of water.
The high court heard oral arguments in the Sackett case last October and is expected to issue its opinion before the end of its term in late June.
Another development regarding the Biden Clean Water regulation came on March 28 in the U.S. Senate, when the chamber voted to strike down the regulation, under provisions of the Congressional Review Act. The vote was 53-43.
The House on March 9 had voted to vacate the rule on a 227-198 vote. The measure goes now to President Joe Biden, who, the White House has said, will veto it.
House and Senate opponents of the Biden regulation are unlikely to be able to muster the two-thirds majorities in each chamber to override a veto.
The construction industry has closely watched the long-running twists and turns in the courts and Congress over the definition of waters of the United States.
The rule and that definition determines when contractors seeking to build near streams, wetlands or other bodies of water must secure a federal permit before beginning work.
