Obama admin, states fight over extent of WOTUS injunction

By Jeremy P. Jacobs | 09/02/2015 01:15 PM EDT

The Obama administration and 13 states sparred yesterday over whether a federal judge should expand his order halting U.S. EPA and the Army’s controversial water rule nationwide.

North Dakota and a dozen states are asking U.S. District Court Judge Ralph Erickson for the District of North Dakota to apply to all states his ruling last week blocking the administration’s Waters of the U.S. regulations (Greenwire, Aug. 28).

EPA contends that the injunction, which prevents the rule from taking effect while the lawsuits play out, applies only to the 13 states in that case.

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After EPA issued its interpretation of his decision, Erickson swiftly asked for both sides to submit briefs on whether his injunction should apply nationally.

The states — Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, North Dakota, South Dakota, Wyoming and New Mexico — sought to turn EPA’s words against the agency in pressing for a broad ruling.

EPA, they wrote, has "repeatedly asserted the uniform applicability, consistency, and predictability were the driving forces in the need for and development of the Rule." After the ruling last week, EPA and the Army Corps of Engineers were "quick to abandon their uniform applicability concerns in favor of seeking to limit the scope of this Court’s ruling," the states wrote.

They added that Erickson should reject the administration’s "litigation tactic."

EPA countered that a nationwide injunction is not warranted for several reasons.

First, the agency noted that more than one other district court denied granting injunctions in challenges to the rule, including in one case involving 11 other states.

EPA further noted that seven states — Connecticut, Hawaii, Massachusetts, New York, Oregon, Vermont and Washington — and the District of Columbia have indicated they will intervene in support of the rule in other litigation pending before the 6th U.S. Circuit Court of Appeals in Cincinnati.

"The Court’s preliminary injunction is based on and addresses harms alleged to affect only Plaintiff States," the administration wrote. "[A]n award of preliminary injunctive relief that sweeps in parties not before this Court is neither necessary or appropriate."

There is some precedent for EPA and the Army Corps applying different water regulations to different states. In 1993, the 4th U.S. Circuit Court of Appeals, which covers Maryland, Virginia, North Carolina, South Carolina and West Virginia, threw out regulations stemming from the "migratory bird rule."

The Supreme Court completely invalidated those rules in 2001, but until then, the agencies applied different standards to those states than others.

Separately, a number of industry groups and states have urged the administration to hold off on implementing the new rule to allow better staff training and time for judicial review (Greenwire, July 31).

Erickson, a Republican appointee, could issue his ruling on the issue anytime.

The North Dakota case is only one of several pending challenges to the Waters of the U.S. rule, which defines which wetlands, marshes and bogs qualify for federal protections under the Clean Water Act.

A dozen lawsuits, including the North Dakota case, were filed in federal district courts, and others were filed in eight federal appeals courts across the country. Those eight have been consolidated at the 6th Circuit, and EPA is pressing for the district court cases to be consolidated and moved to the district court in Washington, D.C. A judicial panel on multidistrict litigation will consider that issue at an Oct. 1 hearing in New York City.

Click here for the states’ brief.

Click here for the Obama administration’s brief.

Reporter Annie Snider contributed.

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