California v. Wheeler

• Decision Date: 19 June 2020
• Docket Number: Case No. 20-cv-03005-RS
• Citation: 467 F.Supp.3d 864
• Court: U.S. District Court — Northern District of California
• Parties: State of CALIFORNIA, et al., Plaintiffs, v. Andrew WHEELER, et al., Defendants.

467 F.Supp.3d 864

State of CALIFORNIA, et al., Plaintiffs,

v.Andrew WHEELER, et al., Defendants.

Case No. 20-cv-03005-RS

United States District Court, N.D. California.

Signed June 19, 2020

Bryant B. Cannon, CA Department of Justice Office of the CA Attorney General, San Francisco, CA, Catherine Mitchell Wieman, Jessica Barclay-Strobel, Tatiana Koleva Gaur, Office of the Attorney General, Los Angeles, CA, Roxanne J. Carter, California Department of Justice Office of the Attorney General, San Diego, CA, for Plaintiff State of California.

Timothy L. Hoffman, Pro Hac Vice, New York State Attorney General's Office, Buffalo, NY, Philip Bein, Pro Hac Vice, New York State Attorney General's Office, New York, NY, for Plaintiff State of New York.

Jason Elliott James, Pro Hac Vice, Illinois Attorney General's Office, Chicago, IL, for Plaintiff State of Illinois.

Daniel P. Bock, Pro Hac Vice, Michigan Department of Attorney General Environment, Natural Resources, and Agriculture, Lansing, MI, for Plaintiff State of Michigan.

William G. Grantham, Pro Hac Vice, NM Attorney General's Office, Albuquerque, NM, for Plaintiff State of New Mexico.

Paul Andrew Garrahan, Oregon Department of Justice Natural Resources Section, Salem, OR, for Plaintiff State of Oregon.

Alison B. Hoffman, Pro Hac Vice, Ri Office of Attorney General, Providence, RI, for Plaintiff State of Rhode Island.

Laura B. Murphy, Pro Hac Vice, VT Attorney General's Office, Montpelier, VT, for Plaintiff State of Vermont.

Ronald Leo LaVigne, Jr., Pro Hac Vice, Attorney at Law, Olympia, WA, for Plaintiff State of Washington.

Gabe Johnson-Karp, Pro Hac Vice, Madison, WI, for Plaintiff State of Wisconsin.

Seth Schofield, Pro Hac Vice, David Seth Frankel, Pro Hac Vice, Massachusetts Office of the Attorney General, Boston, MA, for Plaintiff Commonwealth of Massachusetts.

Nathan Michael Potter Taylor, Pro Hac Vice, New York City Law Department, New York, NY, for Plaintiff City of New York.

Hubert T. Lee, Jonathan Brightbill, Phillip Roark DuPre, U.S. Department of Justice, Washington, DC, for Defendants Andrew Wheeler, R. D. James, United States Environmental Protection Agency, United States Army Corps of Engineers.

Elizabeth P. McCarter, Pro Hac Vice, Attorney at Law Tennessee Attorney Generals Office, Nashville, TN, for Defendant State of Tennessee.

Benjamin Michael Flowers, Pro Hac Vice, Office of the Ohio Attorney General, Columbus, OH, for Defendant State of Ohio.

ORDER DENYING MOTION FOR PRELIMINARY RELIEF

RICHARD SEEBORG, United States District Judge

I. INTRODUCTION

This case is a challenge to a new rule that will substantially narrow the definition of what are "waters of the United States" subject to federal regulation under the Clean Water Act. Plaintiffs seek a court order preventing the new rule from taking effect, pending a determination on the merits of the case. Plaintiffs point to significant irreparable harms that will occur before the litigation is resolved, if the rule is legally invalid but allowed to go into operation now. Were the court tasked with the question of whether the new rule represents wise environmental policy or the best approach to protecting water resources that could be supported by scientific data, the result might be different. The court's narrow role, however, is only to evaluate whether the rule has been adopted in compliance with the requirements of the Administrative Procedure Act. In that context, plaintiffs have not made a sufficient showing to support an injunction or an order delaying the effective date of the new rule.

II. BACKGROUND

Congress enacted the Clean Water Act (CWA or Act) in 1972. The Act's stated objective is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 86 Stat. 816, 33 U.S.C. § 1251(a). The Act further declares, "[i]t is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter." § 1251(b). By its terms, the Act applies only to "the waters of the United States, including the territorial seas."¹ The Environmental Protection Agency and the Army Corps of Engineers (the Agencies or defendants) both have responsibilities under the Act for regulating activities that may affect the waters of the United States.

The rule being challenged in this litigation is The Navigable Waters Protection Rule: Definition of "Waters of the United States," 85 Fed. Reg. 22,250 (April 21, 2020) (2020 Rule or Rule), which is scheduled to take effect on June 22, 2020. While the parties dispute how much acreage of wetlands and how many miles of waterways will be removed from regulation under the CWA by adoption of the 2020 Rule, there is no quarrel that it represents a substantial pullback from the scope of jurisdiction the Agencies have historically asserted.

The 1980s Rule

The Corps first promulgated regulations defining "waters of the United States" in the 1970s. See, e.g. , 42 Fed. Reg. 37,122, 37,144 (July 19, 1977). In the late 1980s, the Agencies adopted regulatory definitions of that statutory phrase substantially similar to the 1977 definition. See 51 Fed. Reg. 41,251 (Nov. 13, 1986) (Corps regulations); see also 53 Fed. Reg. 20,764 (June 6, 1988) (EPA's codification of nearly identical regulatory text). The parties refer to this as the 1980s Rule.

The Agencies' application of the 1980s rule came under Supreme Court scrutiny three times. First, in United States v. Riverside Bayview , 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), the Court deferred to the Corps' assertion of jurisdiction over wetlands "actually abut[ting]" a traditional navigable water. Id. at 131-35 & n.9, 106 S.Ct. 455 (1985). Several years later, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers , 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (" SWANCC "), the Court rejected the Corps' assertion of jurisdiction over non-navigable, isolated, intrastate waters. It held that the term "navigable" must be given meaning within the context and application of the CWA. Id. at 171-72, 121 S.Ct. 675 ; see also id. at 167-68, 121 S.Ct. 675 ("[T]o rule for [the Corps], we would have to hold that the jurisdiction of the Corps extends to ponds that are not adjacent to open water ... [T]he text of the statute will not allow this."). In 2003, the Agencies issued guidance for applying the 1980s Rule in light of the limitations imposed by SWANCC (the SWANCC Guidance).

Most recently, in Rapanos v. United States , 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), a fractured court produced three separate articulations of the outer limits of the Corp's jurisdiction over wetlands. A four-justice plurality held that the consolidated cases before the Court should be remanded for failure to establish jurisdiction. See id. at 757, 126 S.Ct. 2208 (Scalia, J., plurality). Applying a different test, Justice Kennedy also concluded remand was appropriate, and he therefore concurred in the judgment. See id. at 786-87, 126 S.Ct. 2208 (Kennedy, J., concurring). The dissent would have upheld the Corps' finding of jurisdiction. See id. at 810, 126 S.Ct. 2208 (Stevens, J., dissenting). The Agencies subsequently issued guidance instructing that the 1980s Rule should be applied in light of Rapanos by adhering to Justice Kennedy's approach (the Rapanos Guidance).

The 2015 Rule

In 2015, the Agencies revised the regulatory definition of "waters of the United States." See Clean Water Rule: Definition of "Waters of the United States," 80 Fed. Reg. 37,054 (June 29, 2015) (2015 Rule). When promulgating the 2015 Rule, the Agencies stated an intent to adopt the test set out in Justice Kennedy's Rapanos concurrence, which permitted jurisdiction over wetlands and waters that were not navigable in the traditional sense only where they had a "significant nexus" to waters that are or were navigable in fact, or that could reasonably be made navigable. Therefore, to establish that waters and wetlands covered by the scope of the Rule's text would have such a "nexus," the Agencies prepared a scientific literature review. The EPA's Office of Research and Development produced a report entitled "Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence" (the Connectivity Report) which considered over 1200 peer-reviewed publications. The Agencies also relied on an independent review of the Connectivity Report by EPA's Science Advisory Board (SAB). The Connectivity Report made a case for the importance of upstream non-navigable waters and wetlands, and described how they impact downstream navigable waters.

Multiple parties sought judicial review of the 2015 Rule in courts across the country. One court of appeals and multiple district courts stayed or enjoined the 2015 Rule, concluding plaintiffs established a likelihood of successfully invalidating the rule. See In re EPA & DOD Final Rule , 803 F.3d 804, 808 (6th Cir. 2015), vacated by 713 F. App'x 489 (2018)² ; Oregon Cattlemen's Ass'n v. EPA , No. 3:19-cv-564, Dkt. No. 58 (July 26, 2019), vacated as moot , Dkt. No. 81 (D. Or. Mar. 2, 2020); Texas v. EPA , No. 3:15-cv-00162, 2018 WL 4518230 (S.D. Tex. Sept. 12, 2018) ; Georgia v. Pruitt , 326 F. Supp. 3d 1356 (S.D. Ga. 2018) ; North Dakota v. EPA , 127 F. Supp. 3d 1047 (D.N.D. 2015) ; North Dakota v. EPA , No. 3:15-cv-59, Dkt. No. 250 (D.N.D. Sept. 18, 2018). Two courts eventually ruled on summary judgment that the 2015 Rule was "unlawful" and remanded it to the Agencies. Georgia v. Wheeler , 418 F. Supp. 3d 1336, 1372 (S.D.Ga. 2019) ; Texas v. EPA , 389 F. Supp. 3d 497, 504-06 (S.D. Tex. 2019).

The Repeal Rule

In 2017, the Agencies began reconsidering the 2015 Rule, which was stayed at the time. They...