June 25, 2019

June 24, 2019

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Federal Courts Split on Staying EPA’s “Waters of the United States” Rule

Several courts have ruled on motions for preliminary injunction to stay a new U.S. Environmental Protection Agency (EPA) Clean Water Act rule, with only one court granting an injunction. Thursday, August 27, 20015, a North Dakota federal court stayed the effectiveness of EPA’s rule clarifying the definition of “Waters of the United States” (WOTUS) under the federal Clean Water Act. This stay occurred just one day before the rule was to go into effect on August 28, 2015. North Dakota v. U.S. EPA, NO 3:15-cv-59 (D.N.D.). The judge held that an injunction was warranted because EPA (1) exceeded its authority in codifying what the court called an “exceptionally expansive” view of the definition; and (2) failed to comply with procedural rules in promulgating the rule. The court said original jurisdiction vested in his court and not the court of appeals because the rule has “at best only an attenuated connection to any permitting process.”

One day earlier, on August 26, 2015, a West Virginia federal court dismissed Murray Energy’s challenge to the WOTUS rule based on lack of jurisdiction. Murray Energy Corp. v. US. EPA, N0. 1:15-cv-00110 (D.W.Va.). The court ruled that the case had to be brought in the Court of Appeals for the Sixth Circuit where other cases challenging the rule have been consolidated, and dismissed the matter without prejudice. In dismissing the order, the judge noted, “There is no dispute that the Clean Water Rule will have an impact on Murray’s permitting requirements. Indeed, that is the gravamen of Murray’s complaint: ‘Complying with the final rule…will cost Murray substantial sums of money to apply for, obtain and comply with permit conditions…’”

Also on August 27, 2015, a Georgia federal judge denied Florida and 10 other states’ requests for preliminary injunction in another suit challenging the WOTUS rule. The judge stated, “This court agrees with the Murray decision that exclusive appellate jurisdiction over this action will further ‘the congressional goal of ensuring prompt resolution of challenges to EPA’s actions.’” State of Georgia, et al v. McCarthy, et al, No. 2:15-cv-00079 (S.D.Ga.).

The rule is stayed for the parties to the North Dakota case, but goes into effect for all other persons subject to the rule.

All eyes are on these orders just as another controversial federal rule is about to become final by mid-September: the Clean Power Plan. Challengers of the Clean Power Plan rule will undoubtedly raise similar issues in requesting to stay the effectiveness of that rule pending a final resolution of any challenges.

© 2019 Schiff Hardin LLP

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About this Author

Amy Antoniolli, environmental attorney, Schiff Hardin, permit appeals legal counsel, environment regulations lawyer, Illinois Pollution Control law
Staff Attorney

Amy Antoniolli concentrates her practice on environmental matters, advising clients on compliance with relevant laws and regulations and representing them in permit appeals, requests for relief from regulations and in rulemakings.

Amy’s prior experience as Assistant Attorney for the Illinois Pollution Control Board and as Assistant Counsel to the Illinois House of Representatives informs her work at Schiff Hardin and regularly benefits her clients.

Having advised the Board Members of the Illinois Pollution Control Board...

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