Waters of the United States

In this episode, Mark and Vec are joined by guest Jonathan D. Brightbill, former acting Assistant Attorney General, U.S. Department of Justice. Together they discuss the recent decision in State of Colorado v. EPA. 

The Tenth Circuit's review centered on what are "waters of the United States." In April 2020, the Environmental Protection Agency and the Army Corps of Engineers tried to define the phrase through a regulation called the Navigable Waters Protection Rule (NWPR). The State of Colorado swiftly challenged the NWPR in federal court, arguing the new rule, despite its name, did very little to protect the waters of the United States and was both substantively and procedurally flawed. The district court agreed and issued an order staying the effective date of the NWPR. The Tenth Circuit was asked whether the district court abused its discretion when it granted Colorado injunctive relief. To this, the Court responded in the affirmative: "Colorado asked for immediate relief but hasn’t shown it will suffer irreparable injury absent a preliminary injunction. Because that alone compels us to reverse, we do not consider the other preliminary injunction factors."

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