A federal judge in North Dakota cleared the way for several states to challenge a rule that gives the federal government jurisdiction over water flowing within their borders.
The U.S. District Court for the District of North Dakota on March 23 lifted a stay of a case after the U.S. Supreme Court said federal district courts — and not circuit courts of appeals — are the proper venue to hear cases regarding the rule. The government argued that the stay should remain in place, since it plans to propose a new rule under the Trump administration that might render the existing one moot. To the court, however, those plans only count for wishful thinking.
The stay is the latest in a long line of legal thrusts and parries that have had the rule stalled in the courts since its planned promulgation date in 2015. Even before its history in the courts, the rule has pitted environmental groups against the oil and gas industry and states against the federal government.
The Waters of the U.S. rule was introduced to provide clarity about what waters are subject to federal regulatory jurisdiction under the Clean Water Act. But before it was promulgated, individual states brought challenges, claiming it interfered with their rights to regulate water within their borders, that the EPA and Army Corps of Engineers introduced the rule without following the Administrative Procedures Act and that the rule made “sweeping changes for the determination of CWA jurisdiction, drastically altering the administration of water quality programs.”
Several states challenged the rule in different venues — 13 states including Colorado challenged the rule as a group in federal district court in North Dakota, and six others challenged the rule in federal circuit courts. Those circuit court claims were consolidated in the 6th Circuit.
In May 2016, the federal district court case was stayed pending a circuit court decision regarding the question of which court had jurisdiction.
On Jan. 22, the U.S. Supreme Court reviewed the case and ruled that district courts have jurisdiction. Following that decision, seven of the 13 district court plaintiff states filed a motion to lift the stay.
In response to that motion, the defendants, the EPA and the U.S. Army Corps of Engineers, asked the federal court to keep the stay in place for one year, which they said would give them an opportunity to conduct additional rulemaking proceedings that might result in the case becoming moot. The rule is likely to be changed under the Trump administration — EPA administrator Scott Pruitt said a replacement to the rule is expected this year — but the legal challenges and rulemaking process are all likely to take longer than one year, plaintiffs said.
The court said the defendants have not clearly shown they would suffer hardship or inequity if the stay were not continued but that plaintiffs might be harmed by continuing the stay.
The plaintiffs said this case has progressed further than cases challenging the WOTUS rule in other districts and that to continue the stay would “effectively ignore the Supreme Court’s decision that WOTUS rule challenges be decided at the district court level and percolate up through the appellate courts,” the court wrote.
Next, the parties will submit briefs for the court to consider the case’s merits. The court is also considering two motions — one filed by the Sierra Club to intervene as a defendant and another to amend and supplement the administrative record.
A separate challenge from the Sierra Club during the rulemaking phase led to a settlement, which included the EPA publishing a new notice of rulemaking to address several issues the Sierra Club raised that were omitted from the initial rule.
According to the EPA, those administrative proceedings could make any judicial review of the current rule moot.
“This case may in fact become moot at some point in the future, but whether that will occur, and when that might occur, cannot be known,” Magistrate Judge Alice Senechal wrote in the district court order.
Paul Seby, a shareholder at Greenberg Traurig and special assistant attorney general for the State of North Dakota, said the North Dakota case will have implications for others around the country. As of now, it has moved the furthest out of all the legal challenges.
Other cases will be remanded to the district court level, but the case in front of North Dakota’s federal district court already has a preliminary injunction and is moving on to the next stage of litigation.
Seby questioned the EPA’s position of seeking to implement a new rule while standing by it in the court. “How does the DOJ defend the rule when the executive branch is saying the rule’s not good and it’s got to go away?” Seby said. “They’re in a pretty precarious position.”
—Tony Flesor