Kentucky Judge Throws Out WOTUS Lawsuit

Kentucky Federal Judge Dismisses WOTUS Lawsuit, Impending Injury Not There

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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A federal court dismissed a lawsuit filed by the state of Kentucky against the new waters of the U.S. rule. (DTN file photo)

LINCOLN, Neb. (DTN) -- A federal judge in Kentucky tossed the state of Kentucky's lawsuit against the Biden administration and its waters of the U.S. rule, finding in a ruling published on Monday the state and other business intervenors do not have standing to challenge.

Kentucky had asked for a preliminary injunction to prevent the enforcement of the WOTUS rule, but that too was denied by a judge in the U.S. District Court for the District of Eastern Kentucky in Frankfort.

"Without a certainly impending injury, the matter is not ripe for review," Judge Gregory F. Van Tatenhove said in his ruling.

"Simply put, there is no standing. Judges may not pull a case off the shelf because the policy issue is compelling. Their work is limited to 'cases and controversies,' words of limitation. The court has no power to decide this matter."

To prove standing, parties to lawsuits have to show there is an "injury-in-fact" that is "traceable and redressable," according to the judge's ruling. In addition, to establish "ripeness" for an injunction in a case plaintiff have to show actual present harm or "significant possibility" of future harm.

"This case is a compelling example of when a court may be tempted to skirt standing requirements to reach the merits," the judge said in the opinion.

"It presents important issues, argued by well-qualified lawyers, that any court would be privileged to resolve. But judges are not librarians wandering around the reading rooms looking for a topic that catches their fancy. The Constitution limits their reading list. This dispute is not yet a 'case or controversy.'"

The judge said the state of Kentucky could establish an "infringement on its sovereignty" by identifying a water that should be in the state's "exclusive" control over which the agencies assert jurisdiction.

"Absent such a showing, injury to its sovereignty is not certainly impending," the court said.

"The commonwealth does not establish the amount of compliance costs which it will allegedly incur. It submitted a declaration stating that it will have to 'immediately assess which waters (and lands)' are now jurisdictional, requiring 'careful legal and technical analysis' and 'field and survey work.' The commonwealth did not provide big or small picture evidence, it merely submitted a speculative claim that it will 'likely' face increased costs. This speculation does not show a 'certainly impending' injury."

There are two other federal lawsuits pending against WOTUS, one in the U.S. District Court for the Southern District of Texas and another filed by 24 states in the U.S. District for the District of North Dakota.

A number of agriculture groups led by the American Farm Bureau Federation last week asked for a national preliminary injunction against the rule they say expands federal authority over land and water.

Read more on DTN: "Court Puts WOTUS Hold in Texas, Idaho,"…

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Todd Neeley

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