State of West Virginia v. U.S. Envtl. Prot. Agency
| Decision Date | 12 April 2023 |
| Docket Number | 3:23-cv-032 |
| Parties | States of West Virginia, North Dakota, Georgia, Iowa, Alabama, Alaska, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, and Wyoming, Plaintiffs, and American Farm Bureau Federation, American Petroleum Institute, American Road and Transportation Builders Association, Associated General Contractors of America, Cass County Farm Bureau, Leading Builders of America, National Apartment Association, National Association of Home Builders of the United States, National Association of Realtors, National Cattlemen's Beef Association, National Corn Growers Association, National Mining Association, National Multifamily Housing Council, National Pork Producers Council, National Stone, Sand and Gravel Association, North Dakota Farm Bureau, Public Lands Council, and U.S. Poultry and Egg Association, Intervenor-Plaintiffs, v. U.S. Environmental Protection Agency, Michael S. Regan, in his official capacity as Administrator of the U.S. Environmental Protection Agency, Michael L. Connor, in his official capacity as Assistant Secretary of the Army for Civil Works, and LTG Scott A. Spellmon, in his official capacity as Chief of Engineers and ommanding General, U.S. Army Corps of Engineer, Defendants, and Chickaloon Village Traditional Council, Rappahannock Tribe, Tohono O'odham Nation, and White Earth Band of Minnesota Chippewa Tribe, Intervenor-Defendants. |
| Court | U.S. District Court — District of North Dakota |
ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
Now before the Court is the Plaintiffs' “Motion for Preliminary Injunction” filed on February 21,2023. See Doc. No. 44. The Plaintiffs seek the entry of a preliminary injunction prohibiting the Defendants from enforcing, implementing, applying, or giving effect to the Revised Definition of “Waters of the United States.” See 88 Fed.Reg. 3004 (Jan. 18, 2023). The Defendants filed a response in opposition to the motion on March 10, 2023. See Doc. No. 92. The Plaintiffs filed a reply to the Defendants' response on March 14 2023. See Doc. No. 98. The Intervenor-Defendants filed a response in opposition to the motion on March 31 2023. See Doc. No. 120. The Plaintiffs filed a reply to the Intervenor-Defendants' response on April 5, 2023. See Doc. No. 130. For the reasons set forth below the Plaintiffs' motion for preliminary injunction (Doc No. 44) is granted.
This is a lawsuit for declaratory and injunctive relief challenging a federal rule revising the definition of “waters of the United States” under the Clean Water Act, 33 U.S.C. § 1521 et seq., which took effect on March 20, 2023. The Plaintiffs, a coalition of 24 states, filed their complaint on February 16, 2023. See Doc. No. 1. Eighteen trade groups (“Business Intervenors”) moved to intervene as plaintiffs on February 22, 2023, and were granted leave to intervene on March 22, 2023. See Doc. Nos. 54 and 110. Four Native American tribes moved to intervene as defendants on March 8, 2023, and were granted leave to intervene on March 31, 2023. See Doc. Nos. 87 and 118.
The Clean Water Act was passed by Congress in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). The Clean Water Act, and the various definitions of “waters of the United States” (“WOTUS”), has spawned a vast array of regulations that define the extent to which the United States Environmental Protection Agency and the United States Army Corps of Engineers (hereinafter referred to collectively as the “EPA”) possess regulatory jurisdiction over the Clean Water Act. Congress has authorized the EPA to administer the Clean Water Act, 33 U.S.C. § 1251(d), and the United States Army Corps of Engineers to issue permits for projects on land or water under the Act's jurisdiction. Congress has attempted to craft the Clean Water Act “to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution [and] to plan the development and use (including restoration, preservation, and enhancement) of land and water resources.” 33 U.S.C. § 1251(b).
The latest Revised Definition of “Waters of the United States” (“ the 2023 Rule”), 88 Fed.Reg. 3004 (Jan. 18, 2023) defines “waters” to include the following categories:
This case challenges and seeks to enjoin the implementation of the new 2023 Rule, which went into effect on March 20, 2023. The Plaintiffs have commenced suit on statutory and constitutional grounds. The Plaintiffs allege the 2023 Rule runs roughshod over the Administrative Procedure Act (“APA”) in the following manner: (1) the 2023 Rule is arbitrary & capricious, 5 U.S.C. § 706(2)(A); (2) the 2023 Rule is “contrary to constitutional right, power, privilege, or immunity,” Id. § 706(2)(B); (3) the 2023 Rule exceeds statutory authority, Id. § 706(2)(C); and (4) the 2023 Rule was promulgated without observance of required procedure id. § 706(2)(D). See Doc. No. 1, ¶ 6. In addition, the Plaintiffs contend the new 2023 Rule violates the Commerce Clause, the Tenth Amendment, the Due Process Clause, and the Non-Delegation Doctrine. Id.
The Clean Water Act is one of the country's most important environmental laws. Unfortunately, the Act has also created a litany of chaos and uncertainty around the country. There have been an endless stream of lawsuits and legal challenges since at least 2015 which have primarily dealt with issues concerning agency authority and what specific “waters of the United States” are subject to federal jurisdiction versus state protections and control. Congress crafted the Clean Water Act to restore and maintain the country's water, but it also recognized that the States have primary responsibility and rights over their land and resources. 33 U.S.C. § 1251(b). The EPA can certainly regulate water resources with statutory authorization. The confusion that has pervaded the Clean Water Act over the years, combined with its varied rules and regulations, is that only some of the country's waters are subject to federal jurisdiction, namely “navigable waters” as defined by Congress as “waters of the United States.” 33 U.S.C. § 1362 (7), (12).
Over the years there have been a multitude of legal challenges, administrative appeals, lawsuits, and more appeals that have led to many different definitions of “waters of the United States.” The EPA, in its response to this case, attached a memorandum which outlines the extensive litigation that has occurred as a result of the federal agencies' rulemaking over the last decade. See Doc. No. 92-3.
On April 21, 2014, the EPA and the U.S. Army Corps of Engineers issued a proposed rule to change the definition of “waters of the United States” under the Clean Water Act. Following a period of comment, the EPA promulgated a final rule on June 29, 2015, which became effective August 28, 2015.
Thereafter, several parties initially brought suit in both federal district courts and appellate courts. The day before the 2015 Clean Water Rule's August 28, 2015, effective date, the District Court for the District of North Dakota (Judge Ralph Erickson) preliminarily enjoined the rule in 13 states. The North Dakota district court enjoined the 2015 Clean Water Rule from going into effect in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming. North Dakota v. EPA, 127 F.Supp.3d 1047 (D.N.D. 2015).
Petitions filed in the courts of appeals seeking review of the 2015 Clean Water Rule were consolidated in the United States Court of Appeals for the Sixth Circuit. The federal agencies argued that the Sixth Circuit had subject matter jurisdiction to review the rule, while other parties argued that jurisdiction lay with the federal district courts. Some parties argued that the rule should be stayed. On October 9, 2015, the Sixth Circuit issued an order staying the 2015 Clean Water Rule nationwide “pending determination of [the court's] jurisdiction” and recognizing that its order would restore the “familiar, if imperfect” pre-2015 regulatory regime. In re EPA & Dep't of Def. Final Rule, 803 F.3d 804, 806, 808 (6th Cir. 2015).
On January 13, 2017, the United States Supreme Court granted certiorari on the question of whether the courts of appeals had original jurisdiction to review challenges to the 2015 Clean Water Rule. See Nat'l Ass'n of Mfrs. v Dep't of Def., 137 S.Ct. 811 (2017). A year later-on January 22, 2018-the Court...
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