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Additional state litigation for WOTUS could be next

The lawsuit filed by ag groups on the Biden administration’s Waters of the United States rule does not surprise Drake Agricultural Law Center Director Jennie Zwagerman. She tells Brownfield the difference between now and previous litigation is this is a national lawsuit.

“There’s a reason they filed the lawsuit where they did hoping there’s a better likelihood in Texas or the courts to get better reception to their arguements.”

Zwagerman says it could be more difficult for ag groups to get a nationwide stay until the Supreme Court rules in Sackett vs. EPA. And she says she wouldn’t be surprised to see state litigation again.

“When we ended up with half and half back in 2015 when the states filed their own lawsuits, I expect those states to step up soon with additional litigation or join current litigation,” says Zwagerman. “It’s kind of deja vu. If we look at what happened in the past where we’ve seen this exact action, regulation published and litigation that followed, we ended up with a patchwork. Half of the states who joined in litigation succeeded in getting the regulation stayed.”