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Dawson’s Larry Liebesman talks WOTUS litigation and the Sixth Circuit nationwide stay on E&#03

Updated: Jun 5, 2020


E&E Publishing’s OnPoint with Monica Trauzzi

Last week, a divided panel of the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay against enforcement by the EPA and the Army Corps of Engineers of their new WOTUS regulations.

This morning, on E&E Publishing’s OnPoint with Monica Trauzzi, our colleage Larry Liebesman talks with Monica about the impact of the Sixth Circuit’s action, particularly on the U.S. Army Corps of Engineers.  Larry spent more than a decade as a senior trial attorney in the U.S. Department of Justice’s Environment Division.

To watch the full interview, please click here.

An excerpt:

Monica Trauzzi: You were telling me before the show that this is unique and very different from anything that you’ve seen before. How so?

Larry Liebesman: I spent 11 years at the Department of Justice in the Environment Division, the same division and section that is defending this rule. And a lot of times in some of the cases I was involved in, EPA and the Corps would be co-defendants, and there would be differences of opinion.

At times, they’d be at odds with each other, but typically things would be worked out before a final decision is made. You know, as a Justice Department lawyer, you’re supposed to represent the United States. So when that was resolved, you could explain them as part of an ongoing process.

What I find here so interesting is that the Corps of Engineers, in a series of memos, went on the record and disagreed strongly with EPA’s interpretation, distance limits, even the basic data that was gathered, which they said the Court didn’t even have a chance to review and analyze. They even said they wanted the Corps’ name taken off of the final rule, which ultimately didn’t happen, but still to take a position like that on the record in a series of memos is, in my experience, highly unusual.


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