September 1, 2015

WOTUS Part 3: Litigation Gains Momentum

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This past Thursday, 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.”  As previously posted on this Blog, the preliminary injunction was sought by thirteen different states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming) to block the rule before it was scheduled to go into effect on August 28.  The North Dakota district court issued the preliminary injunction since it felt the "States are likely to succeed on their claim because (1) it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule at issue, and (2) it appears likely the EPA failed to comply with [Administrative Procedure Act] requirements when promulgating the Rule."  In supporting its finding that the states were likely to prevail, the district court concluded that EPA had adopted an “exceptionally expansive” view of its own jurisdiction under the Clean Water Act.  According to the court, the rule “allows EPA regulation of waters that do not bear any effect on the ‘chemical physical, and biological integrity’ of any navigable-in-fact water,” and therefore exceeds the limits on federal regulatory authority previously established by the U.S. Supreme Court.

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.  While it is expected that the states challenging the rule not involved in the North Dakota case will seek clarification that the decision blocks implementation in all 50 states, recent federal court decisions in concurrent cases where similar challenges have been made only muddy the waters. 

On the same day, the North Dakota district court granted the preliminary injunction, and the federal District Court for the Southern District of Georgia issued an order denying a motion to enjoin the rule, finding it did not have jurisdiction to hear the case.  A similar ruling was also entered by the District Court for the Northern District of West Virginia last week.  Like the district court decision in Georgia, the district court in West Virginia refused to block the regulation, concluding that it lacked jurisdiction to hear the matter.  However, the district court ruling in Virginia was apparently determined in large part by its recognition of the federal courts’ Judicial Panel on Multidistrict Litigation decision earlier this month that all of the lawsuits challenging implementation should be consolidated and considered by the Court of Appeals for the Sixth Circuit.

Coming Up Next . . .

This past Friday (August 28), the plaintiffs in the North Dakota case informed the court that the EPA announced it would continue to apply the rule in states that did not challenge the injunction.  The district court responded with an order for supplemental briefing on whether the injunction “applies nationally or in a limited geographic area.”  Briefs are due on today (September 1).  Keep in touch.

Part 1   Part 2   Part 4   Part 5   Part 6

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