Puget Soundkeeper Alliance v. Wheeler, CASE NO. C15-1342-JCC
| Decision Date | 26 November 2018 |
| Docket Number | CASE NO. C15-1342-JCC |
| Court | U.S. District Court — Western District of Washington |
| Parties | PUGET SOUNDKEEPER ALLIANCE, et al., Plaintiffs, v. ANDREW WHEELER, et al., Defendants, and AMERICAN FARM BUREAU FEDERATION, et al., Intervenor-Defendants. |
THE HONORABLE JOHN C. COUGHENOUR
This matter comes before the Court on Plaintiffs' motion for summary judgment (Dkt. No. 51) and Defendants' cross-motion for summary judgment (Dkt. No. 57). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS in part and DENIES in part Plaintiffs' motion for summary judgment and GRANTS in part and DENIES in part Defendants' cross-motion for summary judgment for the reasons explained herein.
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The objective of the Clean Water Act (the "CWA") is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251. The CWA applies to "navigable waters," which are defined as "waters of the United States, including the territorial seas." 33 U.S.C. §§ 1251(a)(1), 1362(7). The scope of the regulatory definition of "navigable waters" has been the subject of several Supreme Court opinions. See Rapanos v. United States, 547 U.S. 715 (2006); Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corp. of Engineers, 531 U.S. 159 (2001); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).
In 2015, the U.S. Army Corps of Engineers (the "Corps") and the Environmental Protection Agency (the "EPA") (collectively, the "Agencies") issued a final rule defining the jurisdictional scope of the CWA. Clean Water Rule: Definition of "Waters of the United States," 80 Fed. Reg. 37,054 (Jun. 29, 2015) () (the "WOTUS Rule"). The WOTUS Rule sought to make "the process of identifying waters protected under the CWA easier to understand, more predictable, and consistent with the law and peer-reviewed science . . . ." Id. at 37,055. The WOTUS Rule became effective on August 28, 2015. Id. at 37,054.
Following multiple legal challenges to the WOTUS Rule across the United States, the Sixth Circuit issued a nationwide stay of the WOTUS Rule in October 2015. In re E.P.A., 803 F.3d 804, 808 (6th Cir. 2015), vacated sub nom. In re United States Dep't of Def., 713 F. App'x 489 (6th Cir. 2018). In February 2016, the Sixth Circuit separately held that it had original jurisdiction over challenges to the WOTUS Rule. In re U.S. Dep't of Def., U.S. E.P.A. Final Rule: Clean Water Rule: Definition of Waters of U.S., 817 F.3d 261, 274 (6th Cir. 2016), cert. granted sub nom. Nat'l Ass'n of Mfrs. v. Dep't of Def., 137 S. Ct. 811 (2017), and rev'd and remanded sub nom. Nat'l Ass'n of Mfrs. v. Dep't of Def., 138 S. Ct. 617 (2018). In January 2018, the United States Supreme Court reversed the Sixth Circuit and held that challenges to the WOTUS Rule must be brought in federal district courts. Nat'l Ass'n of Mfrs., 138 S. Ct. at 634.The Sixth Circuit subsequently vacated its nationwide stay. In re United States Dep't of Def., 713 F. App'x at 490.
While the Supreme Court considered the Sixth Circuit's jurisdictional ruling, the Agencies proposed a rule that would add an applicability date to the WOTUS Rule. Definition of "Waters of the United States" —Addition of an Applicability Date to 2015 Clean Water Rule, 82 Fed. Reg. 55,542, 55,542 (Nov. 22, 2017) (). The proposed rule would delay the effect of the WOTUS Rule for two years from the date that final action was taken on the proposed rule, in order to maintain the status quo and provide regulatory certainty in case the Sixth Circuit's nationwide stay was vacated. Id. at 55,542. The Agencies solicited comments on only the issue of whether adding an applicability date would be desirable and appropriate, and expressly did not solicit comments on the merits of the pre-2015 definition of "waters of the United States," or on the scope of the definition that the Agencies should adopt if they repealed and revised the WOTUS Rule. Id. at 55,544-45.
In February 2018, after holding a 21-day comment period on the proposed addition of an applicability date, the Agencies published a final rule adding an applicability date to the WOTUS Rule, which would suspend the effectiveness of the WOTUS Rule until February 2020. Definition of "Waters of the United States"—Addition of an Applicability Date to 2015 Clean Water Rule, 83 Fed. Reg. 5,200, 5,200, 5,205 (Feb. 6, 2018) () (the "Applicability Date Rule"). Under the Applicability Date Rule, the Agencies would apply the pre-2015 definition of "waters of the United States" in the interim. Id. at 5,200.
In May 2018, Plaintiffs filed a first amended and supplemental complaint for declaratory and injunctive relief, which added claims against the Applicability Date Rule. (Dkt. No. 33.) Plaintiffs move for summary judgment on these claims. (Dkt. No. 51 at 13.) Intervenor-Defendants have filed an opposition to Plaintiffs' motion for summary judgment (Dkt. No. 55)and Defendants have filed a cross-motion for summary judgment (Dkt. No. 57).1
Plaintiffs assert that they have associational and organizational standing to challenge the Applicability Date Rule. (Dkt. No. 51 at 29-30.) Defendants have not opposed Plaintiffs' motion for summary judgment for lack of standing. (See generally Dkt. No. 57.) An association may bring suit on behalf of its members when "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington State Apple Advert. Comm'n, 432 U.S. 333, 343 (1977). Individual members of the association must establish that they would have standing to bring suit themselves by showing that they have:
(1) suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).
Plaintiffs have submitted several declarations from their individual members, which detail the members' recreational and aesthetic interests in various wetlands, tributaries, and other smaller bodies of water. (See generally Dkt. Nos. 51-3-51-5, 51-7-51-9.) These declarations state that these bodies of water were generally protected under the broader definition of "waters of the United States" set forth by the WOTUS Rule, and now face increased risks of pollution following the promulgation of the Applicability Date Rule. (See id.) Declarations submitted byPlaintiffs' employees state that Plaintiffs' organizational purposes include the protection of surface waters and enforcement of the CWA. (See Dkt. Nos. 51-2 at 2-3, 51-6 at 2-6, 51-10 at 2-3.) Plaintiffs have established that their individual members have suffered injury in fact that is fairly traceable to the promulgation of the Applicability Date Rule, and that those injuries would be redressed by a favorable decision by this Court. They have also established that the interests sought to be protected are germane to Plaintiffs' organizational purposes. In addition, the issues presented in this case are purely legal and do not require the participation of Plaintiffs' individual members to be resolved. Therefore, Plaintiffs have established that they have associational standing to challenge the Applicability Date Rule.2
"The court shall grant summary judgment 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). Where a case involves review of a final agency action under the Administrative Procedure Act (the "APA"), "the court's review is limited to the administrative record." Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1472 (9th Cir. 1994). In their cross-motions for summary judgment, the parties agree that there are no genuine issues of material fact, and that this case may be resolved on summary judgment. (Dkt. Nos. 51 at 13-14, 57 at 16.)
Plaintiffs contend that the Applicability Date Rule is ultra vires because the Agencies failed to cite a provision of the CWA granting them authority to stay, delay, suspend, or fail to enforce the already-effective WOTUS Rule. (Dkt. No. 51 at 15.) "[A]n agency literally has no power to act . . . unless and until Congress confers power upon it." Louisiana Pub. Serv. Comm'nv. F.C.C., 476 U.S. 355, 374 (1986). Thus, an agency has "no constitutional or common law existence or authority, but only those authorities conferred upon it by Congress." Michigan v. E.P.A., 268 F.3d 1075, 1081 (D.C. Cir. 2001).
Under the APA, when an agency engages in rule making, it must publish a general notice of the proposed rule making in the Federal Register, give "interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments," and "incorporate in the rules adopted a concise general statement of their basis and purpose" following review. 5 U.S.C. § 553(b),(c). After a final rule has been promulgated, an agency seeking to amend or revoke the rule must comply with these notice and comment requirements. 5 U.S.C. § 551(5) (); see Clean Air Council v. Pruitt, 862 F.3d 1, 9 (D.C. Cir. 2017) (...
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