beyond the legal opinion
As previously posted on this blog, on August 27, the federal District Court for the District of North Dakota issued a preliminary injunction temporarily blocking implementation of the Environmental Protection Agency’s (EPA) and the U.S. Army Corps of Engineers’ rule defining “Waters of the United States.” In responding to the district court’s decision, the EPA issued a statement that the preliminary injunction was limited to the 13 states that were party to that case, and the rule would go into effect in the other remaining states. On August 28, the plaintiff states informed the court that the EPA announced it would continue to apply the rule in states that did not challenge its implementation. That same day, the district court responded by issuing an order requesting supplemental briefing on whether the injunction “applies nationally or in a limited geographic area.”
On September 1, the 13 plaintiff states and the EPA and the Corps filed their briefs in support of their respective positions regarding the extent of jurisdictions to be affected by the injunction. The plaintiff states argued that the North Dakota district court possessed the authority to enjoin implementation of the rule nationwide. The EPA and the Corps countered, claiming that the scope of the injunction should be limited to the irreparable harm identified by the plaintiff states.
This past Friday (September 4), the North Dakota district court issued an order refusing to extend the application of the injunction beyond the 13 plaintiff states. When discussing the rationale for its decision, the district court stated that “respect for the decision making authority of the other courts that have ruled on this issue . . . [and] respect for the states who desire the implementation of the [rule],” compelled it to so limit the scope of its injunction. While such an approach seems reasonable enough as a matter of jurisprudence, it does little to acknowledge the fundamentals of natural law. One can only imagine how a rule designed to apply to the regulation of water bodies that may course through numerous jurisdictions, stands to be effectively implemented in some and not others. This should be interesting.
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December 21, 2021
On December 7, 2021, the Environmental Protection Agency (EPA) and the Department of the Army, Corps of Engineers (Army Corps), published a Proposed Rule to define the scope of waters covered by the Clean Water Act.
