Assignment and Instructions for Case Decision/Opinion on WOTUS rule:
There has been a longstanding difficulty determining the regulatory extent of the Clean Water Act. The act’s plain language has proven difficult in that it refers to the navigable ‘waters of the US’ or WOTUS. The act clearly calls for federal regulation to protect the quality of these waters- what is unclear is whether the intention is to protect by only regulating the navigable waters, or if the federal government has the authority and legal obligation to regulate waters that feed the navigable waters of the US- in that they clearly affect the water quality of the navigable waters themselves.
Former President Obama’s EPA Director Gina McCarthy adopted a new ‘definitional rule’ that the EPA claimed at the time eliminated the confusion and clarified the EPA authority to regulate waters beyond just those determined as navigable. This rule was challenged by many as an overreach of authority and lacking in grounding in the plain language of the act. On October 9, 2015 the US Court of Appeals for the Sixth District stayed the new WOTUS rule pending further determination by the courts. New (former) EPA Director Scott Pruitt and his successor Andrew Wheeler are working to rescind the rule and reset the WOTUS rule to pre-2015. These efforts resulted in the ‘Navigable Waters Protection Rule’ executed by then President Trump. As litigation carried on, the new President Biden vowed to restore the definition to the Obama-era rule. In May 2023, the Supreme Court of the United States of American ruled on Sackett v. EPA, significantly limiting the extent of WOTUS. The Biden administration then had no choice but to promulgate a new “Revised Definition of ‘WOTUS”. But several environmentalists contend that the conservative majority of the Supreme Court was not overly balanced in their ruling and dismissed several avenues of scientific fact and longstanding legislative intent found in the plain language of the Clean Water Act.
Your assignment is to imagine you were one of the dissenting justices charged with writing a dissenting opinion on the Sackett v. EPA case. In your own words (and without using AI nor plagiarizing the actual dissenting opinions provided) tell me why the majority got it wrong. (It is okay if you actually think they got it right- it is a good exercise of legal thinking to walk a mile in the other side’s shoes.)
Your opinion is not to exceed 3 pages of typed text (double-spaced) and must align in reasonable fashion to the following structure (following the judicial writing manual- consult the section ‘Organizing and Writing the Opinion’ in HuskyCT):
(1)An introductory statement of the nature and procedural posture of the case
(2)A statement of the issues to be decided
(3)A description of the material facts
(4)A discussion of the governing legal principles and the resolution of the issue(s)
(5)Any necessary instructions on how to proceed
NOTE: you need not dwell on legalese, and will not be graded on proper usage- rather I am interested in your ability to dissect the issues to their core facts and principles on both sides of the issue(s) at hand and render a rational dissent that you believe correct, fair, and most importantly legal on established grounds.
The Judicial Writing Manual will assist you in how to write a legal opinion: Judicial Writing Manual
You should also review the assignment rubric
The following web resources are relevant to the circumstance in the assignment:
https://www.epa.gov/wotus
https://www.epa.gov/sites/production/files/2015-06/documents/epa-hq-ow-2011-0880-20862.pdf
http://www.politico.com/story/2015/05/epa-waterways-wetlands-rule-118319
https://lawprofessors.typepad.com/environmental_law/2023/04/the-wotus-rule-deserves-better-judging.html
Assignment and Instructions for Case Decision 1.2019.docx
incase I will put them in the drop files too