August 27, 2015

Court puts Clean Water Rule on indefinite hold

By M. Reed Hopper Senior Attorney

Our challenge to the Corps and EPA’s illicit rule expansively redefining “waters of the United States,” subject to federal control under the Clean Water Act, just got a big boost.   A federal judge in North Dakota stopped implementation of the rule which was scheduled to go into effect on Friday, August 28.  This could effectively put the rule on hold until our suit, and nine similar suits, have been fully litigated.  Interestingly, this ruling followed two other rulings issued in the last few days that held the district courts did not have jurisdiction to hear the cases.  So there is a split among the district courts of North Dakota, W. Virginia and Georgia.  Now the 6th Circuit will have to decide whether the cases should have been brought in the Circuit Courts of Appeal to begin with.  In other words, a showdown looms over which court has the authority to hear the cases.

The decision of the Judge in North Dakota is salutary in providing a detailed and well-reasoned analysis that tracks the very arguments we raised in our case.  Fortunately, North Dakota lies in the same 8th Circuit Court of Appeals as Minnesota, where we filed our suit.  This will give us an opportunity for direct participation of any appeal.

Here is a summary of the court’s conclusion:

The court finds that under either standard – “substantial likelihood of success on the  merits” 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.

You can read the whole opinion here.

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