318 F.Supp.3d 959 (D.S.C. 2018), 2-18-cv-330-DCN, South Carolina Coastal Conservation League v. Pruitt

Docket NºNo. 2-18-cv-330-DCN
Citation318 F.Supp.3d 959
Opinion JudgeDAVID C. NORTON, UNITED STATES DISTRICT JUDGE
Party NameSOUTH CAROLINA COASTAL CONSERVATION LEAGUE, Charleston Waterkeeper, American Rivers, Chattahoochee Riverkeeper, Clean Water Action, Defenders of Wildlife, Friends of the Rappahannock, North Carolina Coastal Federation, and North Carolina Wildlife Federation, Plaintiffs, v. E. Scott PRUITT, as Administrator of the United States Environmental ...
AttorneyFrank S. Holleman, III, Geoffrey Randall Gisler, Chapel Hill, NC, J. Blanding Holman, IV, Charleston, SC, for Plaintiffs. Barbara Murcier Bowens, U.S. Attorneys Office, Columbia, SC, for Defendants. Michael Branch Kimberly, Mayer Brown, Washington, DC, Timothy S. Bishop, Mayer Brown LLP, Chicago,...
Case DateAugust 16, 2018
CourtUnited States District Courts, 4th Circuit, United States District Courts. 4th Circuit. United States District Court (South Carolina)

Page 959

318 F.Supp.3d 959 (D.S.C. 2018)

SOUTH CAROLINA COASTAL CONSERVATION LEAGUE, Charleston Waterkeeper, American Rivers, Chattahoochee Riverkeeper, Clean Water Action, Defenders of Wildlife, Friends of the Rappahannock, North Carolina Coastal Federation, and North Carolina Wildlife Federation, Plaintiffs,

v.

E. Scott PRUITT, as Administrator of the United States Environmental Protection Agency; United States Environmental Protection Agency; R.D. James, as Assistant Secretary of the Army for Civil Works; and United States Army Corps of Engineers, Defendants, American Farm Bureau Federation, et al., Intervenor-Defendants.

No. 2-18-cv-330-DCN

United States District Court, D. South Carolina, Charleston Division

August 16, 2018

Page 960

Frank S. Holleman, III, Geoffrey Randall Gisler, Chapel Hill, NC, J. Blanding Holman, IV, Charleston, SC, for Plaintiffs.

Barbara Murcier Bowens, U.S. Attorneys Office, Columbia, SC, for Defendants.

Michael Branch Kimberly, Mayer Brown, Washington, DC, Timothy S. Bishop, Mayer Brown LLP, Chicago, IL, William Thomas Lavender, Jr., Joan Wash. Hartley, Nexsen Pruet Jacobs and Pollard, Columbia, SC, for Intervenor-Defendants.

ORDER

DAVID C. NORTON, UNITED STATES DISTRICT JUDGE

This matter is before the court on a motion for summary judgment by a coalition of conservation groups consisting of the South Carolina Coastal Conservation League, Charleston Waterkeeper, American Rivers, Chattahoochee Riverkeeper, Clean Water Action, Defenders of Wildlife, Friends of the Rappahannock, North Carolina Coastal Federation, and the North Carolina Wildlife Federation (collectively, "environmental plaintiffs"), ECF No. 60, as well as a cross-motion for summary

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judgment by defendants Scott Pruitt ("Pruitt"), the United States Environmental Protection Agency ("the EPA"), Ryan Fisher ("Fisher"), and the United States Army Corps of Engineers ("the Army Corps") (collectively "the government"), ECF No. 62. Intervenor-defendants American Farm Bureau Federation, American Forest & Paper Association, American Petroleum Institute, American Road and Transportation Builders Association, Leading Builders of America, Matagorda Farm Bureau, National Alliance of Forest Owners, National Association of Home Builders, National Association of Manufacturers, National Cattlemen’s Beef Association, National Corn Growers Association, National Mining Association, National Pork Producers Council, National Stone, Sand and Gravel Association, Public Lands Council, Texas Farm Bureau, and U.S. Poultry & Egg Association’s (collectively, "the business groups") have filed a response in support of the government’s cross-motion. ECF No. 63. For the reasons set forth below, the court grants environmental plaintiffs’ motion for summary judgment, denies the government’s cross-motion for summary judgment, and enjoins the Suspension Rule nationwide.

I. BACKGROUND

This case arises out of the promulgation of a rule ("the Suspension Rule") that suspends the 2015 Clean Water Rule ("the WOTUS rule") for two years. The Clean Water Act ("the Act") prohibits discharge of pollutants from a point source into "navigable waters" without a permit. 33 U.S.C. § § 1311(a), 1342, 1344, 1362(12). The Act defines "navigable waters" as "waters of the United States, including the territorial seas" but does not define what constitutes "waters of the United States." In 1980, the Environmental Protection Agency ("the EPA"), and in 1982, the Army Corps of Engineers ("the Army Corps") (together, "the agencies"), issued a regulation that defined the term "waters of the United States," (hereinafter, "the 1980s regulation"). Under the 1980s regulation, the term "waters of the United States" included interstate waters, such as interstate wetlands, "intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds," and wetlands adjacent to these waters. The 1980s regulation specifically excluded "waters that are themselves wetlands" as a "waters of the United States."

On August 28, 2015, the EPA and the Army Corps enacted the WOTUS rule to clarify what types of waters constitute a "waters of the United States" and are thus covered by the Act. The WOTUS rule replaced the 1980s regulation and includes seasonal streams, wetlands, and tributaries as a "water of the United States." Soon after its enactment, the WOTUS rule became embroiled in litigation, with cases being brought in district courts across the country, including the Southern District of Texas ("the Texas litigation"). The government petitioned the Judicial Panel on Multi-District Litigation to consolidate these district court actions, which the Panel denied in October 2015.

All of the challenges to the district court decisions regarding the WOTUS rule were consolidated in the Sixth Circuit. In February 2016, the Sixth Circuit ruled that it had original jurisdiction over challenges to the WOTUS rule and issued a nationwide stay of the rule. At the time that the Sixth Circuit issued its nationwide stay of the WOTUS rule, the District of North Dakota had issued a preliminary injunction against the WOTUS rule effective in thirteen states. As a result of this ruling by the Sixth Circuit, the pending district court cases were either stayed or administratively closed. On January 22, 2018, the United States Supreme Court ruled that the circuit

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courts did not have original jurisdiction to review the WOTUS rule, and that challenges must continue to be filed in the district courts. The Sixth Circuit then vacated the nationwide stay of the WOTUS rule. The injunction against the WOTUS rule issued by the District of North Dakota stayed in place.

On February 28, 2017, President Donald Trump issued Executive Order 13778 entitled "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule," which directed Pruitt, the Administrator of the EPA, and Fischer, the Assistant Secretary of the Army for Civil Works, to "review the... [WOTUS rule]... for consistency with... [administration] policy... and publish for notice and comment a proposed rule rescinding or revising the rule, as appropriate and consistent with [the] law." On February 6, 2018, the Suspension Rule was published in the Federal Register. The effect of the Suspension Rule to delay the WOTUS rule until 2020, and in the interim period the controlling interpretation of "waters of the United States" was that prescribed by the 1980s regulation which had been in place prior to the WOTUS rule.

On the same day that the Suspension Rule went into effect, environmental plaintiffs filed suit against the manner in which the Suspension Rule was enacted. Environmental plaintiffs allege the following claims: (1) in promulgating the Suspension Rule, the EPA and Army Corps violated the Administrative Procedure Act ("APA") by taking action with inadequate public notice and comment as prescribed by the APA; (2) the government’s failure to consider the substantive implications of suspending the WOTUS rule in enacting the Suspension Rule was arbitrary and capricious under the APA, which directs federal agencies to "examine the relevant data and articulate... satisfactory explanation[s] for... [their] action[s]"; and (3) the government’s failure after enacting the Suspension Rule to restore the 1980s regulation to the Federal Register violates the APA, which requires federal agencies to publish the language of any substantive regulation that they intend to have legal effect. Environmental plaintiffs ask the court to declare that the EPA and the Army Corps acted arbitrarily and unlawfully in promulgating the Suspension Rule, and to vacate the Suspension Rule.

This motion has been fully briefed and is now ripe for the court’s review.

II. STANDARD

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "Rule 56(c) of the Federal Rules of Civil Procedure requires that the district court enter judgment against a party who, ‘after adequate time for discovery... fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’ " Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 190 (4th Cir. 1997) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Any reasonable inferences are to be drawn in favor of the nonmoving party. See Webster v. U.S. Dep’t of Agric., 685 F.3d 411, 421 (4th Cir. 2012). However, to defeat summary judgment, the nonmoving party must identify an error of law or a genuine issue of disputed material fact. See Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003).

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Although the court must draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence. See Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Stone, 105 F.3d at 191. Rather, "a party opposing a properly supported motion for summary judgment... must ‘set forth specific facts showing that there is a genuine issue for trial.’ " Bouchat, 346 F.3d at 522 (quoting Fed.R.Civ.P. 56(e) (2002) (amended 2010) ). If the adverse party fails to provide evidence establishing that the factfinder could reasonably decide in his...

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11 practice notes
  • Revised Definition of “Waters of the United States”
    • United States
    • Army, Corps Of Engineers Department,Defense Department
    • Invalid date
    ...the rule had been issued--the rule was vacated and enjoined nationwide. See South Carolina Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959 (D.S.C. Aug. 16, 2018); see also Puget Soundkeeper All. v. Wheeler, No. 15-01342 (W.D. Wash. Nov. 26, 2018) (vacating the Applicability Date ......
  • THE PROCEDURE FETISH.
    • United States
    • Michigan Law Review Vol. 118 Nbr. 3, December 2019
    • December 1, 2019
    ...pt. 328). (277.) Nat'l Ass'n of Mfrs.v. Dep't of Def., 138 S. Ct. 617 (2018). (278.) S.C. Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959 (D.S.C. 2018) (entering nationwide injunction of the rule's (279.) North Dakota v. EPA, 127 F. Supp. 3d 1047 (D.N.D. 2015). (280.) Georgia v. ......
  • THE APA AS AN ENVIRONMENTAL LAW.
    • United States
    • Environmental Law Vol. 49 Nbr. 3, June 2019
    • June 22, 2019
    ...that which may be required when an agency does not act in the first instance."). (14) See S.C. Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959, 967 (D.S.C. 2018) (holding suspension of the 2015 Clean Water Rule violated APA notice and comment requirements); Pineros y Campesinos U......
  • WOTUS Operandi: The Clean Water Act’s Bifurcated Regulatory Regime and Why it Matters
    • United States
    • JD Supra United States
    • January 18, 2019
    ...v. Dep’t of Defense, 138 S. Ct. 617 (2018). 8 83 Fed. Reg. 5,200 (February 6, 2018). 9S.C. Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959, 967 (D. S.C. 2018). 10See U.S. EPA, “About Waters of the United States,” available at https://www.epa.gov/wotus-rule/about-waters-united-sta......
  • Request a trial to view additional results
7 firm's commentaries
  • WOTUS Operandi: The Clean Water Act’s Bifurcated Regulatory Regime and Why it Matters
    • United States
    • JD Supra United States
    • January 18, 2019
    ...v. Dep’t of Defense, 138 S. Ct. 617 (2018). 8 83 Fed. Reg. 5,200 (February 6, 2018). 9S.C. Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959, 967 (D. S.C. 2018). 10See U.S. EPA, “About Waters of the United States,” available at https://www.epa.gov/wotus-rule/about-waters-united-sta......
  • Clarifying “Muddy Waters:” EPA and Army Corps Propose Revisions to the Scope of CWA Jurisdiction
    • United States
    • JD Supra United States
    • December 13, 2018
    ...v. Dep’t of Defense, 138 S. Ct. 617 (2018). 13 83 Fed. Reg. 5,200 (February 6, 2018). 14S.C. Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959, 967 (D. S.C. 2018). 15See U.S. EPA, “About Waters of the United States,” available at https://www.epa.gov/wotus-rule/about-waters-united-s......
  • Drowning in Confusion: What Is a “Water of the United States”?
    • United States
    • JD Supra United States
    • September 4, 2019
    ...that the adoption of this regulation violated the Administrative Procedure Act. South Carolina Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959 (D.S.C. 2018); Puget Soundkeeper Alliance v. Wheeler, 2018 WL 6169196 (W.D. Wash. 2018). Lastly, in February 2019, the agencies published......
  • CWA Series: In Redefining The Scope Of The Clean Water Act, Will The New WOTUS Rule Truly Be A Sea Change?
    • United States
    • JD Supra United States
    • April 8, 2019
    ...federal district court entered a nationwide injunction against the suspension rule for violation of the Administrative Procedure Act. 318 F. Supp. 3d 959, 969-70 (D.S.C. 2018). This put the CWR rule, and any injunctions against it, back into effect. Currently, the CWR is only in effect in 2......
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3 books & journal articles
  • THE PROCEDURE FETISH.
    • United States
    • Michigan Law Review Vol. 118 Nbr. 3, December 2019
    • December 1, 2019
    ...pt. 328). (277.) Nat'l Ass'n of Mfrs.v. Dep't of Def., 138 S. Ct. 617 (2018). (278.) S.C. Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959 (D.S.C. 2018) (entering nationwide injunction of the rule's (279.) North Dakota v. EPA, 127 F. Supp. 3d 1047 (D.N.D. 2015). (280.) Georgia v. ......
  • THE APA AS AN ENVIRONMENTAL LAW.
    • United States
    • Environmental Law Vol. 49 Nbr. 3, June 2019
    • June 22, 2019
    ...that which may be required when an agency does not act in the first instance."). (14) See S.C. Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959, 967 (D.S.C. 2018) (holding suspension of the 2015 Clean Water Rule violated APA notice and comment requirements); Pineros y Campesinos U......
  • RESISTING DEREGULATION: HOW PROGRESSIVE STATES CAN LIMIT THE IMPACT OF EPA'S DEREGULATORY EFFORTS.
    • United States
    • Environmental Law Vol. 48 Nbr. 4, September 2018
    • September 22, 2018
    ...these entities may still face these costs if courts rebuff these efforts. 5ee, e.g., S.C. Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959, 967-68 (D.S.C. 2018) (issuing a nationwide injunction against EPA's suspension of the 2015 WOTUS (15) See Memorandum from William L. Wehrum, ......

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