WASHINGTON, DC—On April 18, 2022, Venable filed an amicus brief on behalf of the Association of American Railroads (AAR) in support of petitioners in Sackett v. Environmental Protection Agency, a pending case before the U.S. Supreme Court. The case concerns whether the U.S. Court of Appeals for the Ninth Circuit set forth the proper test for determining whether wetlands are “waters of the United States” (WOTUS) under the Clean Water Act.
One of 28 entities that filed an amicus brief in support of the petitioners, AAR focuses its brief on the ongoing difficulties that the industry has faced with inconsistent interpretations of WOTUS regarding manmade railroad ditches. The brief urges the Court to clarify the scope of WOTUS, given the confusion resulting from the “significant nexus” test established by Rapanos v. United States. At a minimum, the brief points out that these manmade safety features, essential to the operation of our nation’s rail system, do not qualify as jurisdictional water features.
The Venable team included Fred Wagner and Jay Johnson.