WOTUS – Judge restarts N.D. suit in wake of Supreme Court decision

CLEAN WATER RULE
Judge restarts N.D. suit in wake of Supreme Court decision
Amanda Reilly, E&E News reporter
Published: Monday, March 26, 2018
 
A North Dakota federal court will resume hearing litigation over the Obama administration’s Clean Water Rule following an order Friday by a magistrate judge.
 
Magistrate Judge Alice Senechal granted states’ request to lift a stay that had been in place since May 2016. She rejected the Trump administration’s arguments for extending the stay.
 
The administration had “not shown a clear case of hardship or inequity in being required to go forward,” Senechal wrote.
 
The case dates to 2015, when a North Dakota-led coalition of 13 states brought suit in the U.S. District Court for the District of North Dakota challenging the contentious Clean Water Rule. The Obama-era rule aimed to clarify which wetlands and streams receive automatic protection under the Clean Water Act.
 
The states were among several entities that filed lawsuits against the rule — also known as Waters of the U.S., or WOTUS — in courts around the country. The suits broadly argued that the rule was an overreach of federal authority.
 
Challengers in North Dakota won an initial round in the district court when former Judge Ralph Erickson agreed to an injunction on enforcing the rule within the state’s borders. But Erickson, who has since been appointed a circuit court judge, later paused proceedings after the Ohio-based 6th U.S. Circuit Court of Appeals ruled it had jurisdiction to hear WOTUS challenges. The case has been on hold since.
 
In January, though, the Supreme Court unanimously overturned the 6th Circuit’s jurisdiction decision, finding that litigation challenging WOTUS belongs in federal district courts under the language of the Clean Water Act (Greenwire, Jan. 22).
 
Following the decision, seven of the 13 states that originally filed suit in North Dakota asked the district court to lift the stay.
 
But the Trump administration had urged the court to keep the suit on pause to give U.S. EPA and the Army Corps of Engineers time to repeal and replace the rule. The administration is working on a version that is expected to cover fewer bodies of water.
In granting the states’ motion Friday, Senechal wrote that the reason for the stay no longer existed thanks to the Supreme Court decision.
 
“There is no question that a stay would, at least in the short term, conserve judicial resources. And there is no question that judicial resources are currently at a premium in this district. But the Supreme Court has directed that litigation proceed in the district courts,” Senechal wrote.
 
Senechal also rebuffed the Trump administration’s arguments that the case would likely become moot once EPA and the Army Corps issue a new rule.
 
Senechal wrote that it’s not a “foregone conclusion” that WOTUS will be revised or replaced.
 
“This case may in fact become moot at some point in the future, but whether that will occur, and when that might occur, cannot be known,” the magistrate judge wrote.
 
Senechal, though, left the court with some wiggle room in the future, saying her decision will be “subject to reconsideration upon significant developments” either at the federal agencies or in other district courts around the country.
 
Other court action
The North Dakota case is just one of several court challenges that have been in flux following the Supreme Court’s January decision.
 
The heart of the action has been in U.S. District Court for the Southern District of Texas, which is considering requests by states and industry groups for an injunction barring enforcement of WOTUS nationwide.
 
Although the Trump administration stayed implementation of the rule by two years after the Supreme Court decision, states and industry groups argue that a court injunction is needed because of the delay rule’s uncertain future. Environmentalists and states that supported WOTUS have filed litigation challenging that delay in district courts in New York and South Carolina.
 
Judge George C. Hanks Jr. of the Texas Southern District heard oral arguments on the issue in February but has yet to issue a decision. Meanwhile, the Trump administration is trying to get the litigation over the delay rule moved to the Texas court.
 
District courts in Georgia and Oklahoma, on the other hand, have halted WOTUS challenges in their courts.
 
On March 9, Judge Lisa Wood of the U.S. District Court for the Southern District of Georgia agreed to a 30-day stay in litigation. That same day, Judge Claire Eagan of the U.S. District Court for the Northern District of Oklahoma closed a lawsuit in her court.

 

Tags: , , ,