Sep 022015

The federal government and the 13 states that won an injunction halting implementation of the Clean Water (or “waters of the U.S.”) rule are sparring over the geographic scope of the injunction (North Dakota v. U.S., 15-59-RRE-ARS, D. N.D.).

Both sides filed briefs Tuesday, Sept. 1, as required by Chief U.S. District Judge Ralph Erickson. The feds, as expected, are arguing that Erickson’s Aug. 27 order should apply only in the 13 states that brought the suit. The states contend that the injunction should be nationwide.

“[G]iving nationwide effect to the preliminary injunction would go beyond addressing the specific irreparable harms alleged by the Plaintiffs,” the government said in its brief. In addition, “Because the preliminary injunction is intended to preserve the status quo as to these Plaintiffs, it should not apply nationwide, encompassing waters in States that either have not challenged the Clean Water Rule or that have unsuccessfully sought to preliminarily enjoin it in separate judicial proceedings.”

The government cited two other district court decisions denying relief – one in Georgia’s Southern District and one in West Virginia’s Northern District. Judges in both cases said that jurisdiction over the disputes properly lies in the court of appeals, where eight petitions for review have been consolidated.

Said the government:

“The Plaintiff States cannot contend that if any district court in any proceeding where the Clean Water Rule is challenged finds that the criteria for preliminary injunctive relief have been satisfied, that court’s order is binding in all the other proceedings and throughout the nation. That logic would lead to the absurd situation where if a single regulated entity is able to persuade a single district court that it will potentially incur an irreparable harm, then the Clean Water Rule may be enjoined across the nation with respect to every single regulated and regulating entity, including those who benefit from and support the Rule, and even in the jurisdiction of district courts that have previously denied similar injunctive relief.”

“It would also be inappropriate to conclude, in the name of protecting state sovereignty, that this Court’s order to enjoin the Clean Water Rule applies in the nineteen States that have not challenged the Rule, seven of which have moved to intervene in the Sixth Circuit proceedings to, in fact, support it,” the government said.

The states, however, asserted, “The Agencies persistently characterize the scope of the Rule as ‘nationwide.’ The Court’s Injunction Order properly fits the Rule’s scope and should be read to extend nationwide as well. No useful purpose is served by allowing a wildly overreaching Rule to take geographically defined effect for the interim period between the issuance of the preliminary injunction and final resolution of the case. This point has special salience given that the Agencies are seeking to reassert a massive jurisdictional land-grab that the Supreme Court cautioned them against in both SWANCC and Rapanos.

“A nationwide injunction is necessary to prevent inconsistent rulings on the scope of CWA jurisdiction during the pendency of this litigation, while ensuring a consistent and uniform application of the CWA throughout the country," the states argued. "The Court should affirm that the Injunction Order addresses these concerns by applying nationwide.”

“The Agencies have also argued that harm would be caused by ‘conflicting’ interim applications that would work ‘to the detriment of the plaintiffs, the regulated community, and the public.’ See Brief in Support of the Motion of the United States for Transfer, MDL No. 2663, Doc.1-1 at 11: Memo in Support of Defendants’ Motion to Stay Pending a Ruling from the Judicial Panel on Multi-District Litigation under 28 U.S.C. § 1407 to Transfer and Consolidate at 6, No. 3:15- cv-00059 (D.N.D. July 21, 2015), ECF No. 12-1. The Agencies cannot have it both ways. They cannot be concerned about uniform application and consistency when selling the country on the need for the Rule, but abandon those  principles when faced with litigation adversity. This type of litigation tactic should not be rewarded by limiting the scope of the Court’s Injunction Order.”

More links

Opinion and order in Murray Energy Corp. v. EPA (15-110,  N.D. W. Va.) Aug. 26

Order denying P.I. in Georgia v. EPA (15-79, S.D. Ga.) Aug. 27, 2015

Motion by States of New York, Connecticut, Hawaii, Massachusetts, Oregon, Vermont, and Washington, and the District of Columbia, to Intervene in Support of Respondents in Docket No. 15-3751 and In Each of the Related Cases, Aug. 28, 2015

Memo in Support of Defendants’ Motion to Stay Pending a Ruling from the Judicial Panel on Multi-District Litigation under 28 U.S.C. § 1407 to Transfer and Consolidate (the district court actions)

Order consolidating petitions for review in Sixth Circuit

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