West Virginia Record

Thursday, August 22, 2019

Morrisey files amicus brief in U.S. Supreme Court case


By Kyla Asbury | Jul 15, 2019

CHARLESTON —West Virginia Attorney General Patrick Morrisey filed an amicus curiae brief in a case currently before the U.S. Supreme Court involving property owners, farmers and energy producers.

Morrisey filed the brief, urging the U.S. Supreme Court to overturn a lower court ruling that would give the federal government unprecedented control over small streams, farms and property if left intact.

"We were very pleased to lead this multi-state U.S. Supreme Court effort which is really going to protect a lot of property owners here in West Virginia and across the country," Morrisey said. "We've had a lot of success pushing back against federal overreach over the years. I think this case is a very important one and I think we’re on the right side of it."

The lower court ruling specifically concerned a public wastewater utility in Maui County, Hawaii, however, any ruling by the Supreme Court will set case law governing similar instances in West Virginia and the rest of the nation.

"If the Supreme Court does not reverse the lower court, that would create tremendous uncertainty and would, we contend, actually go against existing law," Morrisey said. "By staying with the sensible, predictable definition of what constitutes surface water, everyone knows when and if they are subject to the federal Clean Water Act. That is the clarity governments, businesses and property owners need."


The 21-state coalition argues that the 9th U.S. Circuit Court of Appeals decision would represent a significant expansion of the federal Clean Water Act, beyond Congress’ intent of regulating surface water such as rivers and lakes. By expanding the act, it would potentially require all home septic system owners to apply for federal permits.

That would requirement would impact roughly 220,000 West Virginians, according to the Attorney General's Office.

Morrisey has fought back against several federal government jurisdiction regulations, including when he helped win a stay that blocked enforcement of the Waters of the United States rule in October 2015, a victory West Virginia continues to benefit from, as it proved crucial in providing time for a new administration and reconsideration of the rule.

West Virginia led the Supreme Court brief with support of attorneys general in Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Utah and Wyoming, along with the governors of Kentucky and Mississippi.

U.S. Supreme Court of Appeals Case umber: 18-260

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