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On Thursday, August 27, 2015, a North Dakota federal judge granted a preliminary injunction blocking implementation of the controversial “Clean Water Rule” (Rule) defining “waters of the United States” under the Clean Water Act (CWA) just one day before it was to become effective. State of North Dakota, et al. v. U.S. Environmental Protection Agency, Case No. 3:15-cv-59 (D.N.D. Aug. 27, 2015) (North Dakota). This is the latest decision in one of the 24 cases challenging the Rule which are currently pending in federal courts across the country.
In March 2014, the United States Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) issued a 370-page proposed rule to change the CWA definition of “waters of the United States.” The Rule was in response to the uncertainty and confusion regarding federal jurisdiction under the CWA resulting from the United States Supreme Court’s decisions in Rapanos v. United States, 547 U.S. 715 (2006) (Rapanos) and Solid Waste Agency v. United States Army Corps of Eng’rs, 531 U.S. 159 (2001). The Rule aimed to clarify which waters are subject to federal jurisdiction, and one of its key purposes was to expedite permitting decisions by reducing the need to make jurisdictional determinations on a case-by-case basis. The Rule was finalized on May 27, 2015 and was to become effective on August 28, 2015.
In June 2015, thirteen States challenged the Rule in North Dakota. In their complaint, the States alleged, inter alia, that the Rule eroded the States’ sovereign authority to regulate land and water use within their borders. The complaint also alleged the Rule would impermissibly require the States to devote more resources to comply with federal pollution and water quality standards.
On July 28, 2015, officials in 31 States sent a letter to the EPA and the Corps requesting that the agencies delay implementation of the Rule for nine months. After not receiving a response to this request, attorneys general for eight of the thirteen States in North Dakota filed a motion for a preliminary injunction. Chief Judge Ralph Erickson found that the States were likely to succeed with their challenge to the Rule and granted the injunction on a number of bases.
First, Judge Erickson found that the EPA likely violated its grant of authority in its promulgation of the Rule. Specifically, Judge Erickson found that the Rule likely failed to meet the standard described by Justice Kennedy’s concurrence in Rapanos because it allows the EPA to regulate waters that do not bear any effect on the “chemical, physical, and biological integrity” of any navigable-in-fact water.
Judge Erickson also found that the Rule is likely arbitrary and capricious because the agencies failed to establish a “rational connection between the facts found” and the final Rule. The order granting the injunction notes that the Rule asserts jurisdiction over waters that are remote and intermittent, without any evidence to support that these waters have a nexus to a navigable-in-fact water. Judge Erickson specifically took issue with the lack of evidence to support the 4,000-foot limitation that arbitrarily cuts off which waters can be determined “similarly situated” under a significant nexus determination.
Judge Erickson further criticized the Rule for violating the “logical outgrowth” test. Specifically, the order granting the injunction notes that the final Rule vastly expanded the definition of “neighboring” as compared to what was originally contained in the proposed Rule. Judge Erickson found that substituting the ecological and hydrological concepts found in the proposed Rule with geographic distances in the final Rule was such a substantial change that it was not a “logical outgrowth” of the proposed Rule.
Finally, Judge Erickson also accepted the States’ argument that they would suffer irreparable harm in the absence of an injunction. Judge Erickson agreed that the Rule would irreparably diminish the States’ traditional power over intrastate waters and also would subject the States to unrecoverable monetary harm. Ultimately, Judge Erickson found delaying implementation of the Rule until there is a full and final resolution on the merits of the case is in the best interests of the public.
Following the ruling, EPA indicated that it would not implement the Rule in the thirteen States (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming) that obtained the preliminary injunction under Judge Erikson’s ruling, but that “[i]n all other respects” the Rule is effective as of August 28, 2015. The States, however, argued that the injunction applied nationwide. The Court then requested briefing from the parties on how broadly the injunction should apply. In a ruling on Friday, September 4th, Judge Erickson declined to extend the injunction nationwide. The preliminary injunction therefore applies only to the thirteen States before the Court in the North Dakota action.
More than 70 parties have sought judicial review of the Rule in the United States Courts of Appeals and United States District Courts. There are ten cases pending in District Courts and fourteen petitions for review pending in Courts of Appeals. The Courts of Appeal actions have been consolidated into one case that is currently pending before the Sixth Circuit in Cincinnati. On July 31, 2015, a District Court in Oklahoma granted the government’s request for a stay while it seeks transfer and consolidation of the District Court cases to Washington, D.C. District Courts in West Virginia and Georgia have also issued rulings in cases challenging the Rule, but refused to postpone implementation of the Rule, holding instead that the Sixth Circuit should hear the challenges.
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