AG Schmidt continues fight against WOTUS rule

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Kansas has asked a federal appeals court to either put the EPA’s new water regulation on hold or send the case back to a district court judge for a decision, Attorney General Derek Schmidt said on September 10.

For months, Kansas has lodged its legal objections to EPA’s new ‘Waters of the U.S.’ regulation. Schmidt asked the agency to withdraw the new rule or at least put it on hold while the courts sort out its legality, but EPA has not responded to those requests. So Kansas, along with more than 30 other states, asked federal courts to block the rule as an illegal exercise of power by EPA.

Two weeks ago, a federal judge in North Dakota blocked the rule but only as it applies to the 13 states involved in that lawsuit. Kansas is part of a different lawsuit filed by 11 states in federal court in Georgia. In the Kansas case, the district judge concluded she lacked jurisdiction, deferring instead to a federal appeals court.

Kansas and 17 other states encompassing four separate legal challenges yesterday asked the Sixth Circuit court of appeals in Cincinnati to either block the rule or to send the case back to the trial courts to make clear that initial jurisdiction to decide the challenges lies in the district courts and not the court of appeals. Kansas has also directly appealed from the district judge’s jurisdictional ruling to a separate appeals court in Atlanta.

“The only thing more complicated than the legal challenges to the WOTUS rule is the rule itself,” Schmidt said. “But the bottom line is we’re going to persist until we get our case in front of a judge who can decide the merits of our objection to this federal power grab.”