Litigation Developments Related to the Clean Water Rule

On October 13, 2015, the U.S. EPA filed a Motion to Stay Proceedings in the U.S. District Court for the District of North Dakota in light of the recent ruling by the U.S. Court of Appeals for the Sixth Circuit staying nationwide enforcement of the Clean Water Rule. In their motion, EPA raised the issue as to whether the Sixth Circuit has exclusive jurisdiction to review the Clean Water Rule.

Also on the same day, the U.S. Judicial Panel on Multidistrict Litigation denied a Motion to Transfer several civil actions challenging the Clean Water Rule to the District Court for the District of Columbia for centralized pretrial proceedings. The present motion to transfer concerns ten separate lawsuits filed in eight federal district courts involving the states of North Dakota, West Virginia, Ohio, Texas, Georgia, Oklahoma, and Minnesota. 

The Panel denied centralization finding that the pending actions “will involve only very limited pretrial proceedings” and that “centralization of these actions would be problematic due to their procedural posture.” 

Written by Chloe Marie - Research Fellow

10/15/2015

U.S Court of Appeals for the Sixth Circuit Grants Motion to Stay Against the Clean Water Rule

On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit granted a motion to stay the nationwide enforcement of the Clean Water Rule adopted by the U.S. Army Corps of Engineers and the Environmental Protection Administration. The application of the Clean Water Rule will remain suspended pending further review by the court.

On July 29, 2015, the Judicial Panel on Multidistrict Litigation issued an order consolidating the petitions for review of the Clean Water Rule filed by eighteen states within the U.S. Court of Appeals for the Sixth Circuit. The states challenged the validity of the rule alleging that expanding the scope of “Waters of the United States” subject to federal control would unlawfully supersede state laws vesting jurisdiction over state land and water resources beyond the limits established under the Clean Water Act.

The eighteen states involved in this litigation are Ohio, Michigan, Tennessee, Oklahoma, Texas, Louisiana, Mississippi, Georgia, West Virginia, Alabama, Florida, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah and Wisconsin.

Further information on this case is available at docket no. 15-3799.

In August 2015, another group of states led by North Dakota filed a motion for preliminary injunction before the U.S. District Court for the District of North Dakota seeking an order enjoining the EPA from implementing the Clean Water Rule. This motion was granted in the same month.

Further information on this case is available at docket no. 3:15-cv-00059. 

Written by Chloe Marie - Research Fellow

10/12/2015

U.S. District Court of North Dakota Grants Motion to Enjoin EPA Clean Water Rule

On August 27, 2015, the U.S. District Court for the District of North Dakota granted a motion to enjoin the U.S. Environmental Protection Agency (EPA) from applying the Clean Water Rule. This regulation changes the scope of “Waters of the United States” federally regulated under the Clean Water Act. The rule was scheduled to be effective on August 28, 2015.

In June 2015, a group of states led by North Dakota challenged the Clean Water Rule alleging that the rule would unlawfully supersede state laws vesting jurisdiction over state land and water resources beyond the limits established under the Clean Water Act. On August 10, 2015, the states filed a motion for a preliminary injunction against the implementation of said rule arguing that it would “irreparably harm” their sovereign interests during the pendency of litigation.

The U.S. District Court held that “a balancing of the harms and analysis of the public interest reveals that the risk of harm to the States is great and the burden on [EPA] is slight.” It also emphasized that EPA failed to demonstrate a nexus between “Waters of the United States” and those streams and wetlands having high potential to impact said “Waters of the United States”.

Therefore, the U.S. District Court concluded that the states are likely to be successful in their claims because “it appears that the EPA has violated its Congressional grant of authority in its promulgation of the Rule at issue, and . . . it appears likely the EPA failed to comply with APA requirements when promulgating the rule.”

Further information on this case is available at docket no. 3:15-cv-00059. This is an update of an original post dated August 13, 2015. 

Written by Chloe Marie - Research Fellow

08/28/2015

Oil and Gas Producing States seek to Enjoin EPA Clean Water Rule

On August 10, 2015, a group of states led by North Dakota filed a motion for preliminary injunction before the U.S. District Court for the District of North Dakota seeking an order enjoining the EPA from implementing the Clean Water Rule. The rule is set to go into effect on August 28, 2015. The states of Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, and Wyoming have joined North Dakota in this request.

On May 27, 2015, the U.S. Environment Protection Agency and U.S. Army Corps of Engineers promulgated a new regulation concerning the scope of streams and wetlands that are federally protected under the Clean Water Act. According to the states’ allegations, the rule “provides sweeping changes to the jurisdictional reach of Clean Water Act . . . drastically altering the administration of water quality programs implemented by the States, EPA, and the Corps.” The states also argue that expanding the scope of bodies of water subject to federal control “will irreparably harm the States’ sovereign interests and their State budgets during the pendency of this litigation.”

Just as the states, stakeholders in the oil and gas industry are worried about the potential impacts that the Clean Water Rule could have on energy resource development, according to media reports. As declared by Independent Petroleum Association of America (IPAA) Executive Vice President Lee Fuller, the outcome of such rule will bring “serious concerns about retroactive application of the rulemaking and added costs on business operations.”

The case remains pending in the U.S. District Court for the District of North Dakota Southeastern Division at docket no. 3:15-cv-00059-RRE-ARS.

Other groups of states and organizations separately challenged the Clean Water Rule, and cases have been filed in numerous U.S. District Courts. On July 29, 2015, the U.S. Judicial Panel on Multidistrict Litigation issued an order consolidating the petitions for review of these cases within the U.S. Court of Appeals for the Sixth Circuit.  

Written by Chloe Marie - Research Fellow

08/13/2015