By: Blair M. Gardner
Readers may recall that last month, August 23, 2018, we reported that a federal district court in South Carolina enjoined an EPA rule suspending the 2015 “waters of the United States rule”. EPA had proposed to suspend the 2015 rule and reinstate the previous 1982 regulation defining what constitutes a water of the United States. EPA did so in part to provide uniformity to the definition applied throughout the country.
The South Carolina district court’s order suspending the EPA rule was national in scope. Because two other federal courts in North Dakota and Georgia had already enjoined the 2015 WOTUS rule, the South Carolina court order had the effect of truly dividing the country between 26 states where the 2015 rule is in effect and 24 states where the rule had been enjoined. The allocation of states again shifted on September 12 when the federal district court in Galveston, Texas enjoined the 2015 WOTUS rule in three more states – Texas, Louisiana and Mississippi.
The three petitioning states recited four standard criteria needed to secure an injunction: (1) a substantial likelihood of prevailing on the merits, (2) a substantial threat of suffering irreparable injury if the injunction is denied, (3) the threatened injury outweighs the threatened harm to the opposing party, and (4) that granting the preliminary injunction is in the public’s interest. It was the district court’s explanation of its application of these factors that is interesting. “Here, the applicant States have made a sufficient showing that a preliminary injunction should be granted in this case. . . . [I]t is the fourth factor pertaining to the public’s interest in this matter that tipped the balance in favor of granting an injunction—and did so to an overwhelming degree.” (Order at p. 2). The court then identified the tests used by three different federal courts (each which applied a different standard) to discern what is a navigable water subject to the Clean Water Act. In justifying its decision, the district court wrote, “[w]ere the Court not to temporarily enjoin the Rule now, it risks asking the states, their governmental subdivisions, and their citizens to expend valuable resources and time operationalizing a rule that may not survive judicial review.” (Order at p. 2).
The three petitioning states had sought a nationwide injunction of the WOTUS rule beyond the 24 states where the rule was already in operative. The district court declined to extend its injunction beyond those states that had requested it :“a preliminary injunction should only be granted nationwide when it is clear and unambiguous that the harm threatened is one of a national character.” Op. at p. 3. With this order in place, the 2015 WOTUS Rule is now enjoined in 27 states and being applied in the remaining 23 states.
The case is State of Texas v. United States Environmental Protection Agency, Civil Action No. 3:15-CV-00162 (S.D. Texas) (September 12, 2019).