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Federal District Court Enjoins EPA Rule Suspending 2015 Waters of the United States Rule

Wednesday, August 29, 2018
Hunter Leigh Jones

Hunter Leigh Jones

Associate Editor, ELR

On August 16, 2018, a federal district court in Charleston, South Carolina, enjoined EPA’s rule suspending implementation of the Waters of the United States Rule (WOTUS Rule), which was finalized by the Agency in 2015 under the Barack Obama Administration. The WOTUS Rule was enacted to clarify that wetlands, seasonal streams, and tributaries qualify as “waters of the United States” under the Clean Water Act (CWA), replacing a 1980s regulation that included interstate waters and wetlands adjacent to those waters as “waters of the United States,” but specifically excluded “waters that are themselves wetlands.” The suspension rule, which was finalized in February of this year, effectively delayed the WOTUS Rule until 2020 and reinstated the definition of “waters of the United States” under the 1980s regulation.

In South Carolina Coastal Conservation League v. Pruitt, the U.S. District Court for the District of South Carolina held that EPA failed to follow proper administrative procedures under the Administrative Procedures Act (APA) when it promulgated the suspension rule in two ways: firstly, by failing to provide opportunities for notice and comment; and secondly, by failing to consider the substantive implications of changing the definition of “waters of the United States.” The APA requires an agency to publish any proposed rulemakings in the Federal Register and offer the public an opportunity to participate in the rulemaking process before promulgating a rule. The U.S. Court of Appeals for the Fourth Circuit held in North Carolina Growers’ Ass’n, Inc. v. United Farm Workers that an agency’s suspension of a set of regulations and reinstatement of another set of regulations qualifies as rulemaking under the APA. In reviewing the Agency’s notice of proposed rulemaking for the suspension rule, the court found that the notice explicitly restricted public comments to the desirability and appropriateness of an applicability date and whether the two-year delay should be shorter or longer. In doing so, the Agency refused to engage in a substantive reevaluation of the definition of “waters of the United States” despite the fact that the suspension rule had the legal effect of undoing the definition under the WOTUS Rule and reverting to the definition under the 1980s regulation. The court concluded that the Agency’s failure to provide a meaningful opportunity to comment on the suspension rule violated the APA and thus enjoined the rule nationwide.

Wetlands

 In determining the scope of its injunction, the court found no principled reason why the suspension rule should be enjoined in some states but not others, given that the challenged conduct causes harm in multiple jurisdictions across the country, and because the environmental groups who filed the lawsuit are located throughout the United States. Moreover, it concluded that a nationwide injunction was necessary to provide relief in this instance as the suspension rule affects many wetlands across the United States. The court’s decision effectively reinstates the WOTUS Rule in 26 states, but it will not impact the 24 other states where legal challenges are still pending. (For a discussion on the ramifications and implications of this decision on the future of the CWA, see ELI’s latest Breaking News webinar.)

South Carolina Coastal Conservation League v. Pruitt is one of at least three high-profile environmental cases this month in which courts have struck down anti-environmental actions by the Donald Trump Administration on procedural and/or substantive grounds. Other cases include Indigenous Environmental Network v. United States Department of State, in which a federal district court in Montana held that the State Department improperly refused to supplement its environmental impact statement for the Keystone XL oil pipeline after the route of the pipeline was changed, and League of United Latin American Citizens v. New York, in which the U.S. Court of Appeals for the Ninth Circuit vacated an EPA rule maintaining a tolerance for the pesticide chlorpyrifos in spite of scientific evidence that the pesticide’s residue on food caused neurodevelopmental damage to children.