By Eric Wolff
The court battle over the Obama administration's contentious
Waters of the U.S. rule kicks off today when plaintiffs make their case to the
6th Circuit Court of Appeals about what documents should be admitted in the
trial. The administrative record may sound like a bureaucratic backwater, but
in a case that's heavily weighted with Administrative Procedures Act claims,
documents showing how the agencies made key decisions about the rule could be
hugely influential.
One set of documents likely to come up in plaintiffs' brief:
internal memos from a top Army Corps general to an Obama-appointed policy boss raising
concerns about changes made in the final version of the rule and arguing his
agency was cut out of the process. The memos argue that the rule, also called
the Clean Water Rule, would shrink federal jurisdiction rather than expand it -
as state and industry groups argue - but raise process issues that could have
their desired effect of overturning the rule.
But will the fight stay in the 6th? Even as they're off and
running before the 6th Circuit, plaintiffs are still making their case that the
challenges should first go through district court. The 11th Circuit Court of
Appeals, which is weighing an appeal from Georgia and 10 other states of a
lower court's rejection of their preliminary injunction request, is slated to
hear arguments today on whether it should take up the case. Meanwhile,
Oklahoma's attorney general has filed his own appeal on the same issue after a
district court dismissed his challenge to the rule.
