By Kristine A. Tidgren
Clean Water Rule litigation rages on.
By Kristine A. Tidgren
The new Clean Water Rule (often called the “waters of the United States” or “WOTUS” rule) went into effect on Aug. 28. Well, partially that is. The much-publicized rule that establishes the formal definition of waters subject to regulation under the Clean Water Act went into effect in 37 states on Aug. 28. Landowners in the other 13 states — which include North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, South Dakota, and Wyoming — are still subject to the old definition of jurisdictional waters.
That’s because a federal judge in the United States District Court for the District of North Dakota entered a temporary injunction on Aug. 27 blocking the rule’s implementation. The judge ruled the following week, however, that the injunction applied only to those 13 states involved in the North Dakota lawsuit. The judge decided to narrow the application of the injunction because there were so many similar lawsuits pending. He cited competing “sovereign interests” and “judicial rulings” as the basis for his decision. To be successful, the other 18 states that have filed lawsuits challenging the rule will have to convince the judges in their own jurisdictions to also block the rule. Or one plaintiff will have to convince one of the courts considering the question to issue a nationwide injunction. So far, that has not happened, but the battle has just begun.
Amidst pages of new weekly legal filings, the rule is facing challenges on many fronts. In addition to the majority of states in the Union, many other plaintiffs, including farm groups, industry groups, and even environmental groups, have filed legal complaints challenging the rule. Most plaintiffs are asking the courts to vacate the rule in its entirety. Most of the lawsuits filed by states were initiated by the attorneys general of those states. As of late September, the State of Iowa had not joined in any pending lawsuits.
The key legal claims asserted in most of the lawsuits filed against the Environmental Protection Agency and the United States Army Corps of Engineers (the two agencies tasked with developing and enforcing the rule) are common. The states, farming groups, and industry groups generally argue that the new rule greatly increases the percentage of waters in the United States subject to Clean Water Act jurisdiction. The plaintiffs urge that the rule’s new definition is so expansive that many more landowners will have to obtain costly and burdensome permits or pay steep fines for conducting normal activities such as spraying weeds, installing a fence, or removing trees.
Specifically, the lawsuits allege that: (1) the rule exceeds the bounds of authority granted to the agencies by Congress under the Clean Water Act, (2) the rule impinges upon state sovereignty because it seeks to regulate waters over which states have sole jurisdiction, and (3) the agencies violated the Administrative Procedures Act (APA) in issuing the rule. The APA requires an agency to follow detailed notice and comment procedures before enacting most new federal regulations. The plaintiffs allege that the final version of the rule varied substantially from the proposed one and that an adequate opportunity for comment was not provided. For their part, the agencies contend that the rule is not an expansion of authority, but a “clarification” of policy. They argue that it brings more certainty to landowners.
As noted above, one judge has disagreed. In issuing the temporary injunction, which blocks enforcement of the rule while further legal proceedings unfold, the North Dakota judge found that the states were “likely to succeed” in their legal challenge. Specifically, the court found that it was likely that “the EPA” had violated its Congressional grant of authority in issuing the rule and that it was likely that “the EPA” failed to comply with APA requirements when issuing the rule.
District courts in West Virginia and Georgia, although considering similar requests for a preliminary injunction from other states, denied those requests. Those courts did not address the merits of the lawsuits. Instead, the courts found that the federal circuit courts had original jurisdiction for these claims under 33 U.S.C. §1369(b)(1). The State of Georgia and 10 other states have appealed the Georgia district court’s ruling, arguing that the district court (and not the circuit court) is the proper court to consider the lawsuit. These states are asking the United States Court of Appeals for the Eleventh Circuit to send the case back to the district court for a speedy decision on the merits.
Most plaintiffs have also filed petitions for review in their respective circuit courts to preserve their claims if it is ultimately determined that only the circuit courts have jurisdiction to review the claims. All petitions for review filed in the circuit courts have been consolidated in the United States Court of Appeals for the Sixth Circuit. To add even more complexity to this litigation quagmire, the agencies have sought to have all pending district court lawsuits transferred to the United States District Court for the District of Columbia for consolidated pretrial proceedings. The plaintiffs have argued that this multidistrict consolidation would deprive them of their choice of forum.
On Oct. 9, the United States Court of Appeals for the Sixth Circuit stayed the Clean Water Rule nationwide. This temporary ruling brings uniformity to the patchwork of enforcement that has existed since the rule’s Aug. 28 effective date. In several weeks, the same court will decide whether it has jurisdiction to decide the merits of the case. And on Oct. 13, the United States Judicial Panel on Multidistrict Litigation denied the agencies’ motion to centralize the cases in the United States District Court for the District of Columbia. This means that if the Sixth Circuit determines it does not have jurisdiction to hear these cases, the merits will be decided by the various district courts where the complaints were filed.
Although much uncertainty surrounds the future of the rule, it is pretty clear that the barrage of litigation will continue into the foreseeable future. Several environmental groups have also challenged the rule in court, arguing that the rule does not go far enough in protecting the nation’s waterways.
Legislative efforts to vacate the rule have also been initiated. In May, the House of Representatives voted to force the agencies to withdraw the rule. A similar bill is pending in the Senate. On Sept.17, 47 Senators – led by Iowa Senator Joni Ernst – signed a resolution to “disapprove” the rule and block its implementation. Iowa Senator Charles Grassley also signed the resolution. In a statement accompanying the release of the resolution, Ernst said, “This ill-conceived rule ignores the thoughtful comments and serious concerns raised by farmers, ranchers, manufacturers and small businesses across the country.” The EPA continues to assert that the rule merely eliminates confusion and that “normal farming practices” continue to be exempt.
One thing is certain: the rule has definitely caused waves. “Tsunami” may be the more appropriate description. We will keep you posted.
CALT does not provide legal advice. Any information provided in this article is not intended to be a substitute for legal services from a competent professional. CALT’s work is supported by fee-based seminars and generous private gifts. Any opinions, findings, conclusions or recommendations expressed in the material contained in this article do not necessarily reflect the views of Iowa State University. For more information about CALT, visit http://www.calt.iastate.edu/.