Today's the Day! Or Maybe Not

August 28, 2015
Kristine A. Tidgren

On the eve of the official effective date of the new Clean Water Rule (Fed. Reg. 37,054-127,), a North Dakota federal judge has issued a preliminary injunction to stop the EPA and the U.S. Army Corps of Engineers from enforcing it. The court stated:

The court finds that under either standard – “substantial likelihood of success on themerits” or “fair chance of success” – the States are likely to succeed on their claim because (1) it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule at issue, and (2) it appears likely the EPA failed to comply with APA requirements when promulgating the Rule. Additionally, the court finds the other factors relevant to the inquiry weigh in favor of an injunction.

The injunction was requested by States of North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, and Wyoming, and the New Mexico Environment Department. A similar request for an injunction by other states was denied by a federal court in West Virginia and a federal court in Georgia. Those courts determined that jurisdiction for the question was with the court of appeals.

The court concluded:

The court acknowledges that implementation of the Rule will provide a benefit to an important public interest, both in providing some protection to the waters of the United States and because it would provide increased certainty as to what constitutes jurisdictional waters as some people will be categorically removed from the definition of waters of the United States (for example owners of an intermittent wetland 4,001 feet away from an established tributary). The benefit of that increased certainty would extend to a finite and relatively small percentage of the public. A far broader segment of the public would benefit from the preliminary injunction because it would ensure that federal agencies do not extend their power beyond the express delegation from Congress. 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 the Agencies is slight. On the whole, the greater public interest favors issuance of the preliminary injunction.

EPA has stated that the injunction applies only to those states that sought the injunction. The old rule, the agency said, will be applied in those states. The new rule, however, will be applied by the EPA and the U.S. Army Corps in the remaining states beginning today.

You can read the entire ruling here.

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