In the past two weeks, two federal district courts reached seemingly opposite conclusions regarding the implementation of the U.S. Environmental Protection Agency’s and the U.S. Army Corps of Engineers’ (“the Agencies”) Navigable Waters Protection Rule (“the Rule”). The Rule, which took effect on June 22, narrows the term “waters of the United States” and, thereby, the scope of waters subject to federal jurisdiction under the Clean Water Act (“CWA”). The Rule has been a top priority for the Trump Administration under its two-step process to repeal the Obama Administration’s 2015 rule, which expanded the scope of the CWA, and replace it with a rule that provides more distinct clarity as to which waters are jurisdictional. States, environmental groups, and other interested parties have filed lawsuits across the country challenging the Rule and requested courts issue preliminary injunctions to prevent it from taking effect.

On June 19, the United States District Court for the Northern District of California denied a motion for a nationwide preliminary injunction that was filed by California and sixteen other states and cities (“Plaintiffs”). Plaintiffs filed a lawsuit challenging the Rule and, on May 21, filed a motion for a nationwide preliminary injunction to prevent the Rule from taking effect. In the first ruling of its kind, Judge Richard Seeborg found that the Plaintiffs had not met the standard for a preliminary injunction and denied the motion. The Court found that the Plaintiffs had not shown a likelihood of success on the merits of their legal challenge and rejected the Plaintiffs’ claims that an injunction was warranted to avoid irreparable injury.

Addressing the likelihood of success on the merits, the Court noted that the Agencies’ interpretation of the term “waters of the United States” is ultimately entitled to deference, and should be upheld if it is a reasonable interpretation of the term. The Court emphasized that Congress had failed to clearly define the term in the statute and that there had been a shifting interpretation of the term between administrations. The Court acknowledged that interpretative changes motivated by a change in administration are not inherently unreasonable and concluded that the Agencies’ current interpretation—even if it is inconsistent with the Agencies’ 2015 interpretation of the term—is likely not inconsistent with the text, structure, and purpose of the CWA.

The Plaintiffs had also argued that they were likely to succeed on the merits because the Rule reflected such a significant shift from the Obama rule and the scientific foundation for the Obama rule. In denying the injunction, the Court noted that the Agencies had provided an explanation for the policy change and articulated why they discounted the scientific underpinning used to justify the 2015 rule.

The Court also rejected Plaintiffs’ argument that the environment would suffer irreparable harm if the Rule takes effect. While the Court acknowledged that withdrawing protections afforded by the 2015 rule may immediately manifest in some waters and wetlands, the Court concluded that Plaintiffs’ arguments relied on speculative assumptions. The Court added that Plaintiffs likely failed to show that the alleged harms apply equally across the county, weighing against the grant of a nationwide injunction. Finally, the Court abstained from determining whether the Rule served the public interest, reasoning that such a determination would have required the Court to improperly scrutinize the Agencies’ policy decisions.

On the same day, Judge William J. Martinez of the District of Colorado (an Obama appointee) reached an opposite conclusion and granted a request for a preliminary injunction, concluding that the Rule contradicts the Supreme Court’s decision in Rapanos v. United States, 547 U.S. 715 (2006). Specifically, Judge Martinez concluded that the Rule impermissibly implements the jurisdictional test put forth by the four-Justice plurality in Rapanos authored by Justice Scalia rather than Justice Kennedy’s concurring opinion. Given the Rule’s contradiction of Justice Kennedy’s concurring opinion in Rapanos, Judge Martinez determined that the plaintiffs would likely succeed in challenging the Rule and halted its implementation in Colorado during the pendency of the trial.

Similar lawsuits remain pending in federal district courts in Arizona, Washington, New Mexico, South Carolina, and Massachusetts, which could result in the Rule’s suspension on a state or nation-wide basis. For more information on these cases or the implications, please contact Andrea Wortzel, Fitzgerald Veira, Byron Kirkpatrick, Brooks Smith, Patrick Fanning, Ashley Cameron, or Rich Pepper.