Commonwealth v. United States Envtl. Prot. Agency
| Decision Date | 09 May 2023 |
| Docket Number | CIVIL 3:23-cv-00007-GFVT |
| Parties | COMMONWEALTH OF KENTUCKY, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
One way to think about the doctrine of standing is that it keeps Courts from too quickly evaluating public policy. It is our duty to say what the law is but only when controversies have ripened so we can do our job well. Now before the Court are the Plaintiffs' Motions for an Emergency Injunction pending appeal. [R. 52; R. 53.] The challenge here by the Commonwealth and various business groups is to an administrative rule changing the definition of “waters of the United States.” [See R. 1.] The Court denied an effort to preliminarily enjoin the enforcement of the Rule. [R. 51.] In this Court's judgment, the Plaintiffs have not provided enough support to find that the claims are ripe. Simply put, the Plaintiffs lack standing. Without standing, the Court has no jurisdiction and consequently dismissed the action.
The Plaintiffs appealed. [R. 60; R. 61.] Now, the Plaintiffs seek an emergency injunction pending appeal. For the reasons below, the Motions [R. 52; R. 53] are DENIED.
The EPA and Army Corps of Engineers promulgated a Rule redefining “waters of the United States” for the purpose of enforcing the Clean Water Act. [R. 1-1.] It became effective on March 20, 2023. Id. at 2. The Plaintiffs claim that the Rule violates the Clean Water Act, Administrative Procedure Act, and United States Constitution. [See R. 1.]
The Court denied the Plaintiffs' Motions to preliminarily enjoin the Agencies from enforcing the Rule. [R. 51.] It found that the Plaintiffs are unlikely to succeed on the merits because their claims are not ripe. Id. at 7-20. Specifically, it ruled that the Plaintiffs failed to establish that the injuries allegedly caused by the Rule are “certainly impending.” Id. It made clear that its ruling “is not to say that the Plaintiffs would never have standing to litigate the questions they present.” Id. at 20. “[C]ertain developments, pleadings, or allegations could ripen this matter into a controversy fit for judicial review.” Id.
The Plaintiffs staunchly disagree. They now seek an emergency injunction pending appeal. [R. 52; R. 53.] They have also filed these motions in their appeal before the Sixth Circuit. The Sixth Circuit entered an administrative stay, preventing the agencies from enforcing the Rule until May 10. [R. 64.] The Court must still resolve the emergency injunction motions pending before it. These motions relitigate the parties' original arguments and claim that they are entitled to an injunction, which this Court already denied, while their appeal of that denial is pending. Id.
The Plaintiffs bring their emergency injunction motions under Federal Rule of Civil Procedure 62(d). That Rule allows district courts to “suspend, modify, restore, or grant an injunction” “while an appeal is pending from an interlocutory order or final judgment that grants continues, modifies, refuses, dissolves, or refuses to dissolve or modify the injunction.” Fed.R.Civ.P. 62(d). Though the Plaintiffs have already appealed, Federal Rule of Appellate Procedure 8(a)(1)(C) requires them to first seek this relief in this Court. That Rule states that “a party must ordinarily move first in the district court” for “an order . . . granting an injunction while an appeal is pending.” Fed. R. App. P. 8(a)(1)(C).
As an initial matter, this case's procedural posture leads to a peculiar application of Rules 8 and 62. Motions under these Rules typically ask the district court to stay an injunction it granted while an appeal of the order granting the injunction is pending. See, e.g., Planned Parenthood Great Nw. Haw., Ala., Ind., and Ky., Inc. v Cameron, 2022 WL 1698085, at *4 (W.D. Ky. May 26, 2022). The Plaintiffs' desired relief-granting an injunction pending appeal of an order denying that same injunction-is effectively a motion to reconsider and is likely not the intent of the Rules. Wright & Miller suggests the same, framing a motion under Appellate Rule 8 as a “stay of the lower federal court's action.” 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3954 (5th ed. 2023). Nevertheless, the text of the Rule does allow the Court to “grant” an injunction pending appeal of an order that “refuses” an injunction. Fed.R.Civ.P. 62(d).
Assuming that the Motions are procedurally correct, they are unsuccessful. In resolving a motion for stay pending appeal, the Court considers the same factors it considered in resolving the preliminary injunction motions: “(1) the likelihood that the party seeking the stay will prevail on the merits; (2) the likelihood that the moving party will be irreparably harmed; (3) the prospect that others will be harmed by the stay; and (4) the public interest in the stay.” Crookston v. Johnson, 841 F.3d 396, 398 (6th Cir. 2016) (citing Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 244 (6th Cir. 2006)). The Court denied the original Motions for Preliminary Injunction on the first factor because no plaintiff sufficiently established a certainly impending injury, making their claims unripe. [R. 51.] Neither Motion for Emergency Injunction cures this infirmity.
The Commonwealth contends that the Court's denial of the preliminary injunction is “egregiously wrong.” [R. 52 at 1.] In support, it repeats many arguments the Court has already addressed and rejected.
The Commonwealth first relies on its sovereignty, claiming that [R. 52 at 4.] It believes that the standing analysis is so clear because “the Agencies acknowledge that the Final Rule gives them jurisdiction over new waters in Kentucky.” Id. at 3. The Rule's economic analysis concluded that it “would not change current implementation sufficiently to quantifiably alter overall costs to the regulated public or States ....” [R. 31-5 at 13.] It anticipated a “slight and unquantifiable”
increase in jurisdiction which it described as “de minimis.” Id. at 12. At the preliminary injunction hearing, the Defendants emphasized that the Rule's impact will be “slight and unquantifiable.” [R. 45 at 7.]
The Commonwealth argues that these representations constitute an acknowledgment that there are waters in Kentucky which are newly jurisdictional. [R. 52 at 3-4.] This is a conclusory assertion which is unsupported beyond the Agencies' representations. And those representations alone are insufficient. “Plaintiffs bear the burden of establishing standing, and they must support each element ‘in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at successive stages of the litigation.'” Fair Elections Ohio v Husted, 770 F.3d 456, 459 (6th Cir. 2014) (quoting Lujan, 504 U.S. at 561). The Agencies' statement that the Rule causes a “slight and unquantifiable” increase in jurisdiction does not satisfy this burden. [R. 45 at 7.]
Compare this admission to that in cases-both of which the Commonwealth relies on in support-resolving challenges to the 2015 Rule. The EPA recognized that the 2015 Rule would increase jurisdictional waters by 2.84 to 4.65 percent. See North Dakota v. EPA, 127 F.Supp.3d 1047, 1059 (D. N.D. 2015); Georgia v. Pruitt, 326 F.Supp.3d 1356, 1367 (S.D. Ga. 2018). Numerous courts found this acknowledgment sufficient to establish a certainly impending injury to states' sovereignty. See id. Here, the Agencies' representation that the Rule will cause a “slight and unquantifiable” change does not acknowledge a similarly clear injury to state sovereignty. [R. 45 at 7.] This is not an instance, as the Commonwealth contends, “when an agency action is so broad that its impact on the State is obvious or virtually certain.” [R. 52 at 7 (quoting Kentucky v. Biden, 23 F.4th 585, 594 n.7, 595) (quotation marks omitted).] Thus, the Commonwealth does not establish that the perceived injury to its sovereignty is certainly impending.
The Commonwealth also invokes the “special solicitude” theory of state standing expressed in Massachusetts v. EPA. [R. 52 at 6-7.] There, the Supreme Court held that the states' “well-founded desire to preserve [their] sovereign territory” can constitute an injury. Massachusetts v. EPA, 549 U.S. 497, 518 (2007). But that case did not relax the standing requirements. Arizona v. Biden, 40 F.4th 375, 385-86 (6th Cir. 2022). While it created new theories of injury for states, it did not “allow them to bypass proof of injury in particular or Article III in general.” Id. at 386. The states' special solicitude does not, and cannot, rescue the Commonwealth's failure to establish a certainly impending injury to its sovereignty.
The Court's ruling does not, as the Commonwealth claims “conclud[e] that federal infringement on Kentucky's sovereignty is not an injury-in-fact.” [R. 52 at 4.] Rather, it found that the Commonwealth failed to show that such an infringement was certainly impending. The Commonwealth does not mend this weakness in its emergency injunction motion. Ultimately, the Court disagrees with the Commonwealth's belief that “it is obvious and virtually certain that at least some waters Kentucky had previously regulated exclusively will not be under federal control.” [R. 52 at 8 (quotation marks omitted).] Like its Motion for Preliminary...
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