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August 28, 2015 Practice Points

WOTUS Stayed as Tomorrow’s Effective Date "Looms"

A North Dakota district court granted a preliminary injunction motion by 13 states.

By Karen Aldridge Crawford

A North Dakota district court granted a preliminary injunction motion by 13 states, staying the effective date of the Waters of the United States (WOTUS) rule. The court first evaluated the threshold question of jurisdiction, and found that original jurisdiction was “vested in this court and not the court of appeals because the “Clean Water Rule: Definition of Waters of the United states,” jointly promulgated by the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (ACOE), has “at best only an attenuated connection to any permitting process.”

The court went on to find that under either standard for injunctive relief (“substantial likelihood of success on the merits” or “fair chance of success”), the states are likely to succeed on their claims because the EPA appeared to have violated its congressional grant of authority under the Clean Water Act and also appeared likely to have failed to comply with the Administrative Procedure Act in promulgating the rule).

Finally, the court found that the other factors relevant to the inquiry weighed in favor of an injunction. In its Dataphase factors analysis (threat of irreparable harm, balance of harms, movant’s likelihood of success on the merits, and the public interest), the court determined that the states were likely to prevail, had shown they would suffer irreparable harm in the absence of a preliminary injunction, that the preliminary injunction was in the best interest of a broader segment of the public than those who would benefit from greater certainty the rule arguably provides, and the risk of harm to the states outweighed the potential burden to the EPA and ACOE. This case is State of North Dakota, et. al. v U.S. Environmental Protection Agency, et. al., Civil No. 3:15-cv-59, D. N.D.

However in another case challenging the WOTUS rule, Murray Energy’s similar motions in a challenge before a West Virginia district court resulted in the court finding that the company’s claims were grounded upon prospective permitting difficulties, and ruled that the case belonged in the Sixth Circuit. Murray Energy had also filed its challenge in the Sixth Circuit.

Karen Aldridge Crawford is with Nelson Mullins Riley & Scarborough in Columbia, South Carolina.

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