North Dakota beat the U. S. Environmental Protection Agency and the Corps of Engineers in one U. S. District Court last Friday. EPA won two other cases regarding implementing the Waters of the United States regulation.
EPA made it clear that it would immediately start implementing WOTUS in 37 states. In 13 states, WOTUS will not be implemented immediately.
Let's sort out what happened.
States and the Murray Energy Corporation all sought preliminary injunctions in different courts to stop EPA and the Corps from beginning to implement the WOTUS regulation this past Friday.
The three court decisions focus on three different courts. All three courts sought to determine if each had jurisdiction to hear the requests for a preliminary injunction to stop EPA and the Corps from implementing WOTUS.
Because the North Dakota case presents a victory for agriculture, I will focus and attempt to explain what happened regarding this confusing set of decisions.
EPA wants all of the states' challenges heard before a U.S. Court of Appeals. The States want U.S. district courts to hear the case because district courts will likely be more knowledgeable regarding the factual issues and the enormous impact of the WOTUS rule on agriculture.
There is a section in the Clean Water Act which deals with issues a U.S. court of appeals handles and issues a U.S. district court handles. U.S. courts of appeals generally review national effluent limitations for industry discharges. They also review the issuing and denying of permits. Two of the court's rulings in EPA's favor believe the WOTUS rule is reasonably related to issuing or denying permits. The North Dakota U.S. District Court wrote that the WOTUS rule is clearly not an effluent limitation and that WOTUS is clearly not issuing nor denying a permit.
The Court said that a court of appeals has no jurisdiction to consider the WOTUS rule. After reviewing which level of the courts has jurisdiction to hear the case, there is a review of when a preliminary injunction motion will be granted. North Dakota's Attorney General and the 12 other Attorneys General argued that EPA's WOTUS rule poses the possibility of irreparable harm to their constituents, there is a likelihood the states will achieve success on the merit of their arguments, the balance of harms is in favor of the states and it is in the public interest to grant a preliminary injunction stopping EPA and the Corps from implementing WOTUS.
These four tests are common ones for lawyers to meet in obtaining a preliminary injunction.
The court found that North Dakota and its additional 12 plaintiffs will suffer irreparable harm unless an injunction is issued to stop EPA and the Corps. It said, "In order to demonstrate irreparable harm, a party must show that the harm is certain and great and of such imminence that there is a clear and present need for equitable relief."
The Court went on to claim that if the rule takes effect, "...the states will lose their sovereignty over intrastate waters that will then be subject to the scope of the Clean Water Act."
EPA has claimed on many occasions it is merely clarifying its definition of what is a regulated water and not increasing its authority. The Court writes, "...the agencies admit to an increase in control over those traditional state-regulated waters of between 2.84 to 4.65%. Immediately upon the rule taking effect, the rule will irreparably diminish the states' power over their waters."
The Court also found that states will incur direct financial losses and will have to spend "vast expenditures" to map portions of each state and that many existing projects may have to be halted or suspended while the state undertakes mapping to determine if EPA and the Corps have jurisdiction.
The second factor the Court reviewed was whether North Dakota would have likelihood of success on winning the entire case. The Court's conclusion was yes, the states will win.
The Court found that it appears EPA has exceeded its authority under the Clean Water Act. The Court found that EPA will be regulating waters that "do not bear any effect on the chemical, physical, and biological integrity of any navigable-in-fact water."
The Court went on to find that EPA's WOTUS rule is arbitrary and capricious and an abuse of discretion. It said EPA is attempting to even regulate intermittent and remote wetlands that have no nexus to navigable waters.
The North Dakota Court opinion is devastating and thorough in its analysis as to why EPA and the Corps need to be stopped. The other two courts issued cursory opinions as to why a U.S. court of appeals should review the WOTUS rule.
Agriculture owes a debt of gratitude to North Dakota and its Attorney General. This case has a long way to go!
Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.