A recent amicus curiae filing in a high-profile Michigan Clean Air Act case targets an important aspect of environmental law — citizen suit provisions — and whether they run afoul of constitutional principles. In U.S. v. DTE Energy et al., a Michigan district court is considering arguments of two law professors who question whether citizen suits invade executive powers.
Illinois is taking the final steps toward adopting an authorized state program for direct administration of the Prevention of Significant Deterioration (PSD) permitting program under proposed state regulations, taking responsibility for federal Clean Air Act (CAA) requirements previously administered under delegated authority from the U.S. Environmental Protection Agency (EPA).
On July 31, 2020, the Fish and Wildlife Service and National Marine Fisheries Service (collectively, the “Services”) released an advance copy of a proposed rule defining “habitat” under the Endangered Species Act (ESA). The proposed rule is expected to be published in the Federal Register this week, kicking off a 30-day public comment period. Continue Reading Definition of Habitat Proposed for the ESA
Citing delegated States as the primary enforcers of the Clean Water Act (CWA) and the promotion of federalism, Assistant Attorney General for the U.S. Department of Justice’s (DOJ) Environmental and Natural Resources Division (ENRD) Jeffrey Bossert Clark recently issued a memorandum promoting the use of enforcement discretion for certain civil CWA matters where a state proceeding has been initiated or concluded.
The memo memorializes and expands DOJ’s existing informal procedures and provides that civil enforcement actions seeking penalties under the CWA will be “strongly disfavored” if a State has already initiated or concluded its own civil administrative proceeding for penalties under an analogous State law arising from the same operative facts. Mr. Clark notes recent updates to the DOJ’s Justice Manual that require additional coordination with state and local authorities to ensure the federal government does not “pile on” when State, local or other federal enforcement actions are sufficient.
The memo includes a number of “touchstones” to consider in evaluating whether to bring a subsequent federal civil action, such as whether the State is diligently prosecuting an initiated civil enforcement action, whether the State has been able to recover the penalties it sought, or whether a federal action is necessary to protect an important federal interest not adequately addressed in the State action. Further, States must have requested the DOJ’s help in writing and cite reasons for such a request. These factors set a high bar for initiating a subsequent federal action, which includes a formal request process under which requests are subject to Mr. Clark’s approval.
Please contact Brooks M. Smith, Gregory W. Blount, Fitzgerald E. Veira, Byron W. Kirkpatrick, Patrick J. Fanning, Houston Shaner, or Buck Dixon with questions regarding the memo.
On July 27, the Michigan Legislature’s Joint Committee on Administrative Rules (JCAR) filed new administrative rules and rule amendments concerning Michigan’s drinking water standards with the Michigan Secretary of State’s office. Included among the new rules are maximum contaminant levels (MCLs) for seven different types of per- and polyfluoroalkyl substances (PFAS). All of the new rules and rule amendments will take effect on August 3, 2020.
The new PFAS MCLs establish enforceable limits on PFAS in drinking water that will be applied to public drinking water supplies as well as groundwater cleanups throughout the state as cleanup criteria. Currently, the state groundwater cleanup criteria for PFAS is 70 parts per trillion (ppt or ng/l) for PFOA and PFOS in any combination, which are two of the most well-researched PFAS types. The new Michigan Administrative Rule 325.10604g, however, sets new PFAS limits as follows:
Level in ng/l
|Hexafluoropropylene oxide dimer acid (HFPO-DA)||370|
|Perfluorobutane sulfonic acid (PFBS)||420|
|Perfluorohexane sulfonic acid (PFHxS)||51|
|Perfluorohexanoic acid (PFHxA)||400,000|
|Perfluorononanoic acid (PFNA)||6|
|Perfluorooctane sulfonic acid (PFOS)||16|
|Perfluorooctanoic acid (PFOA)||8|
The rule states that the MCLs apply to “community” and “nontransient noncommunity” water supplies (definitions included below), and that compliance with these MCLs will be “determined based on the analytical results obtained at each sampling point. If 1 sampling point is in violation of an MCL, then the supply is in violation of the MCL.” The rule goes on to state how sampling data should be calculated to determine compliance with the MCLs for applicable public water supplies. In turn, new Rule 325.10717d specifies standards for collection and analysis of water samples from public water supplies for PFAS.
Notably, however, Rule 325.10717d also appears to expand the reach of the PFAS MCLs to all public water supplies — not just the “community” and “nontransient noncommunity” types. Subsection (2) of the rule states that “the department may require samples to be collected and analyzed at prescribed frequencies for per- and polyfluoroalkyl substances” for the remaining two public water supply types, known as “transient noncommunity” and “Type III” public water supplies. The rule then goes on to prescribe standards that appear to depend on the concentration of PFAS in a given sample and not on the type of public water supply the sample came from — for example, subsection (10) of the rule requires additional monitoring if any sample exceeds the PFAS MCLs, and subsection (14) states that “[a]ll new supplies or supplies that use a new source of water shall demonstrate compliance with the MCLs before serving water to the public.” Through these and other provisions of the rule, it appears that “transient noncommunity” and “Type III” public water suppliers can be made to comply with the PFAS MCLs.[i]
Along with the MCLs, however, Rule 325.10308b, titled “Best available technology,” specifies that granular activated carbon (GAC) or “an equally efficient technology” are the best available technologies for the treatment of the PFAS types listed in the table above. The inclusion of the phrase “or an equally efficient technology” is likely intended to (1) capture any new treatment technologies that may present themselves in the near future, due to the rapidly evolving research around PFAS; and (2) provide flexibility to water suppliers in their choice of additional treatment technologies that are currently available and have shown the potential to provide “equally efficient” treatment of PFAS, such as certain types of anion exchange filtration systems. Further, although this rule is intended to apply to public water supply treatment, it may indicate the acceptance of “equally efficient” treatment technologies for groundwater cleanups, as well.
Finally, Rule 325.10401a specifies the public notice procedures required for applicable public water systems to report certain rule violations and exceedances, including exceedances of the new PFAS MCLs. Rules 325.12701, 12708, and 12710 discuss laboratory certification requirements for those labs testing for PFAS in water samples.
Practical Considerations for Groundwater Cleanups
The practical effects of these new MCLs are certainly far-reaching for both public water systems and groundwater cleanups. However, the effect on groundwater cleanups is likely to be especially pronounced. As of August 3, cleanups across the state will have to rapidly adjust to severely reduced PFOA and PFOS cleanup targets — and they will also have to account for five new PFAS types that were previously not in focus. This may result in additional testing and shifting regulatory goals at established cleanup sites, even for those cleanups that are currently underway pursuant to established administrative orders, due in part to the reopener provisions that are typically included in those agreements.
Beyond the effects on established cleanup sites, however, the MCLs are also going to bring new sites into EGLE’s focus. The agency recently announced that the new MCLs are going to result in 42 new sites being added into the Michigan PFAS Action Response Team (MPART) portfolio. Per EGLE:
Half of the new sites are landfills and more than a dozen are former plating or manufacturing sites. Many sites are also the subject of ongoing EGLE investigations into other forms of contamination. Summaries of the new sites will be posted on the MPART web site after the rules become official. Additionally, MPART will schedule a series of regional webinars to provide more information regarding next steps in the state’s investigation into PFAS contamination at these sites.
The attorneys at Troutman Pepper are actively working to assist companies in evaluating these complex issues and working with environmental regulators during this challenging time. For more information on these issues, please contact the authors.
[i] For reference, a “community water supply” is defined as “a public water supply that provides year-round service to not fewer than 15 living units or that regularly provides year-round service to not fewer than 25 residents”; a “noncommunity water supply” is defined as “a public water supply that is not a community supply, but that has not fewer than 15 service connections or that serves not fewer than 25 individuals on an average daily basis for not less than 60 days per year”; a “nontransient noncommunity water supply” is defined as “a noncommunity public water supply that serves not fewer than 25 of the same individuals on an average daily basis over 6 months per year. This definition includes water supplies in places of employment, schools, and day-care centers”; a “transient noncommunity water supply” is defined as “a noncommunity supply that does not meet the definition of nontransient noncommunity water supply”; and a “Type III” public water supply is any public water supply that (1) is not considered to be any type of community or noncommunity water supply, and (2) does not supply water to only one living unit.
On July 16, 2020, the Council on Environmental Quality (CEQ) published its long-awaited final rule to amend its regulations implementing the National Environmental Policy Act of 1969 (NEPA), introducing important changes to the 40-year-old review process. The statute requires federal agencies to take a “hard look” at the environmental impacts of certain proposed projects, but does not mandate any particular outcome. The final rule follows CEQ’s June 2018 Advanced Notice of Proposed Rulemaking (ANOPR) and the January 2020 Notice of Proposed Rulemaking (NOPR), which we previously discussed here.
CEQ’s revisions represent the first update to the NEPA rules in 40 years. While they codify many streamlined practices federal agencies already use, they also introduce important changes to the review process. Many of the significant aspects of the final rule remain largely unchanged from the NOPR, including reduced timeframes agencies have to complete NEPA reviews; page limit, content, and recommended format for NEPA documents; and process for referral to CEQ of actions causing unsatisfactory environmental effects. Below is a breakdown of the most important changes, which while sure to be challenged, will apply to projects commencing after September 14, 2020.
Definitions of Effects & Major Federal Action
As expected, CEQ’s most significant revision is to the definition of “effects” or “impacts” of a proposed action. Just as initially proposed, CEQ has done away with the definitions of direct, indirect, and cumulative impacts. Perhaps most significant and controversial, the cumulative impacts analysis is no longer required as part of a NEPA review under the final rule.
For the first time in the final rule, CEQ has defined effects as changes to the human environment from the proposed action or alternatives that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives. The language in italics is a change from the NOPR. CEQ has further clarified this definition by stating that these effects can occur at the same time and place as the proposed action or alternatives but also may include effects that are later in time or farther removed in distance from the proposed action or alternatives. CEQ has also explained that more than a “but for” causal relationship is needed to make an agency responsible for a particular effect under NEPA, and also that effects should generally not be considered significant if they are remote in time, geographically remote, or the product of a lengthy causal chain. By adding this qualifier in italics, the final rule departs from firmer language in the NOPR by acknowledging that there may be circumstances where these remote effects are nonetheless reasonably foreseeable, have a reasonably close causal relationship to the proposed action, and thus an agency should consider them.
With respect to climate change, CEQ has explained in the preamble to the final rule that “the analysis of the impacts on climate change will depend on the specific circumstances of the proposed action” and that agencies “will consider predictable trends in the area in the baseline analysis of the affected environment.” This is a significant clarification difference from the proposed rule, which would have limited the analysis of greenhouse gas impacts to reasonably foreseeable effects with a reasonably close causal relationship to the proposed action or alternatives. Under the final rule, while CEQ removed the definition of cumulative impacts from the rule, it left open the ability for agencies to consider effects of greenhouse gases, indicating that consideration of the cumulative and indirect effects of climate change are not precluded by the final rule.
Another significant change is to the definition of “major federal action,” which the final rule revises and restructures. First, CEQ has changed the definition from “an action subject to Federal control and responsibility with effects that may be significant” to “an activity or decision subject to Federal control and responsibility.” CEQ deleted the reference to significant impacts because the inquiry of what constitutes a major federal action is limited to determining the federal agency’s role and its control over environmental impacts. The term “significant,” on the other hand, describes the impacts stemming from the action, which is a separate analysis.
Second, CEQ has now provided a list of activities that are non-major federal actions. These actions include extraterritorial activities with effects located entirely outside of the U.S., non-discretionary actions, non-final agency actions, judicial or administrative civil or criminal enforcement actions, general revenue sharing funding assistance with no federal agency control over the use of funds, certain loans and guarantees, and non-federal projects with minimal federal funding or involvement. With respect to this last category of projects with minimal federal involvement, CEQ expects that federal agencies will further define these non-major actions in their NEPA procedures. Although CEQ considered doing so, it decided not to establish a monetary threshold to quantify how minimal the funding should be.
Appropriate Level of Review
Generally, the final rule adopts most of the changes set forth in the NOPR regarding the level of review needed for a given action, but there are some notable differences:
- The final rule provides additional clarity on when an agency may issue a Finding of No Significant Impact (FONSI). Whereas the NOPR would have allowed a federal agency to issue a FONSI when the proposed action is “not likely to have significant effects,” the final rule takes a firmer stand and provides that an agency may only use a FONSI when the proposed action “will not have significant effects.”
- On the other hand, CEQ has softened the requirements for when an agency may use categorical exclusions (CEs) to define certain categories of actions. The NOPR provided that agencies can use CEs to define categories of actions which do not have a significant effect on the human environment, but the final rule provides that agencies may use CEs to define actions that normally do not have a significant effect, and may adopt another agency’s CE determination or portions thereof if the two actions subject to the determinations are substantially similar.
Public Participation & Comment
The final rule generally eases public participation requirements during the NEPA process by eliminating the NOPR’s direction that agencies provide a 30-day comment period on draft EISs and on the “alternatives, information, and analysis” section of a final EIS. The final rule instead stipulates that agencies may set a deadline for providing such comments. Additionally, it omits the requirement that comments should “identify any additional alternatives, information, or analyses not included in the Draft EIS,” and requires that agencies consider the ability of affected persons and agencies to access electronic media when selecting the appropriate methods for providing public notice.
Scoping & Alternatives
The final rule goes a step further than the NOPR in limiting the scope of actions—in addition to the proposed action—that an agency must consider when developing a NEPA document. Specifically, the final rule deletes the requirement that an agency must consider “similar actions” to the proposed action, which, when viewed with other reasonably foreseeable or proposed agency actions, are similar enough that their environmental consequences should be evaluated together. With respect to reasonable alternatives, the final rule is consistent with the NOPR, confirming that the federal action agency must only consider those alternatives “that are technically and economically feasible, meet the purpose and need for the proposed action, and, where applicable, meet the goals of the applicant.” This new definition for “reasonable alternatives” clarifies that agencies are not required to give detailed consideration to alternatives that are unlikely to be implemented because they are infeasible, ineffective, or inconsistent with the purpose and need for agency action.
Additionally, agencies should limit their consideration of alternatives to a “reasonable” number of alternatives relevant to the proposed action, and their analysis of the affected environment to the “reasonably foreseeable environmental trends and planned actions in the area.” CEQ specifically declined to establish a presumptive maximum number of alternatives for the evaluation of a proposed action.
Next Steps for Agencies
The final rule requires federal agencies to develop new or revised NEPA-specific procedures to align with the final rule within one year of the rule’s effective date. In case of any inconsistencies during this transition period, CEQ’s final NEPA regulations control. Further, for projects in progress, agencies may continue using their existing NEPA procedures and CEQ’s 1978 regulations, but they should indicate so to interested and affected parties.
Going forward, CEQ expects that the final rule will provide much-needed transparency to the public regarding agency costs to complete EIS-level NEPA reviews. The final rule follows the NOPR instructing agencies to track costs by preparing review cost estimates, including costs of the agency’s full-time equivalent personnel hours, contractor costs, and other direct costs related to the proposed action’s environmental review.
What’s Next for the Final Rule?
The rule will apply to reviews commencing after September 14, 2020, although project proponents may seek to petition agencies to apply the rule’s principles earlier. The final rule is expected to face litigation, however, and many environmental groups have already promised to challenge it. Even if the new rule is able to withstand a facial challenge, environmental groups will continue to challenge projects on an individual basis.
Notably, litigation is not the only hurdle that this final rule may face. Given the current timing in the congressional legislative session, the final rule falls within the Congressional Review Act (CRA) “carry over” period, meaning that the next Congress will have an opportunity to nullify the rule. Although the use of the CRA was uncommon in the past, it was used at least 15 times at the beginning of the Trump Administration to repeal controversial Obama-era rules.
The California State Water Resources Control Board (Water Board) has issued Order WQ 2020-0015-DWQ, requiring Publicly Owned Treatment Works (POTWs) with dry weather design flows greater than 1 million gallons per day to test for per- and polyfluoroalkyl substances (PFAS) in influent, effluent, biosolids, and, in some cases, groundwater. POTWs with existing groundwater monitoring programs may be required to submit initial documentation for compliance as early as August.
The order covers thirty-one PFAS analytes (see table provided here), as well as eleven additional analytes listed for “optional analysis.” All treatment sampling and analysis and groundwater monitoring proposals and analysis must be uploaded to the Water Board’s GeoTracker system, and will be incorporated into the Board’s ongoing PFAS mapping project.
Treatment System and Groundwater Sampling
Starting in October, POTWs must sample and analyze influent, effluent, and reverse osmosis concentrate/retentate for the listed PFAS quarterly for one year. Biosolids must be sampled for PFAS and moisture content quarterly by POTWs with dry weather design flows greater than 5 million gallons per day, and just once by smaller POTWs.
POTWs with existing groundwater monitoring and reporting programs must also monitor groundwater for PFAS, and must submit a groundwater monitoring proposal at least 60 days before the next groundwater monitoring period that includes the following:
- A figure of the groundwater monitoring well network and groundwater flow direction that indicates a minimum of three monitoring wells proposed to be sampled.
- Rationale for the selection of groundwater monitoring wells for representative sampling.
Following approval of the proposed sampling locations, a one-time monitoring event must commence during the next groundwater monitoring period, but no sooner than October.
Ongoing Non-Drinking Water PFAS Investigation.
POTW PFAS testing requirements are designed to support “preliminary investigation of the mass loading of PFAS into the POTW and then leaving the POTW in different media (treated wastewater, brine, biosolids).” PFAS testing at POTWs was included the third phase of a three-phase investigation plan announced in 2019. The Water Board issued its first non-drinking water investigatory orders to airports and landfills in March 2019, and issued testing orders to chrome plating facilities in October 2019. Refineries, bulk terminals, and non-airport fire training areas have also been identified as sites where testing may be required.
Detection of PFAS exceeding reporting limits may result in requirements for reduction of PFAS levels in discharges and/or remediation of affected surface and groundwater, particularly as ongoing PFAS-related legislative and regulatory initiatives proceed. California has already adopted notification levels for drinking water for PFOS and PFOA to 6.5 ppt and 5.1 ppt, and response levels of 40 ppt for PFOA and PFOS. Limits for additional substances are expected. Given the attention PFAS have garnered, publicly posted and mapped data reported through the GeoTracker system will be scrutinized by private plaintiffs as well as regulators seeking to understand the sources and scope of PFAS releases. Failure to comply with the order can result in civil penalties up to $10,000 per day of noncompliance.
On July 8, 2020, EPA pre-published a proposed rule to amend the NESHAP for Industrial, Commercial, and Institutional Boilers and Process Heaters (Boiler MACT) in response to three remands issued by the D.C. Circuit—two in 2016 in U.S. Sugar Corp. v. EPA, 830 F.3d 579 (D.C. Cir. 2016) and one in 2018 in Sierra Club, et al. v. EPA, 884 F.3d 1185 (D.C. Cir. 2018). Based on the proposal, EPA’s effort to comply with those decisions will make 28 emission limits more stringent than they were before, many only marginally so, but some by more than an order of magnitude.
In the first remand in U.S. Sugar Corp., the court found that EPA’s January 2013 final rule amendments improperly excluded certain sources from its MACT floor emission limits calculations. The court held that if a source is included in a subcategory, then EPA must consider that source in establishing the MACT floor. Specifically, EPA used a threshold of 10 percent to define its fuel-based subcategories, but then only considered facilities using 90 percent of each fuel to establish the standards. That approach left sources using less than 90 percent of a fuel out of the standard-setting calculation, but nevertheless covered by the standard subcategory-defining fuel to define each subcategory, the MACT floor analysis used a 90-percent fuel threshold.
As a result of the court’s finding, EPA is now proposing to revise the MACT floor emission limits for certain subcategories. Specifically, the rule proposes to revise 34 of 90 emission limits for particular types of new and existing boilers and process heaters—making 28 more stringent, while six would become less stringent. A summary of the affected subcategory, pollutant, and proposed emission limit changes are provided in Table 6 at page 59 of the pre-published rule. Facilities will have up to three years after the effective date of the rule to demonstrate compliance with the new emission limits and, in the meantime, must continue to comply with the 2015 rule. EPA stated that it is proposing the three-year allowance to allow facilities time to install additional controls or monitoring equipment to meet the more stringent emission limits, or modify the method of compliance.
In U.S. Sugar Corp., the court also remanded for further explanation EPA’s use of CO as a surrogate for non-dioxin organic HAP to address the potential availability of post-combustion control technologies. In the proposed rule, EPA explains that between combustion devices and recovery technologies, the former are the more commonly applied control device because of its high removal efficiencies of most types of organic vapor HAPs, and its effectiveness does not depend on the organic HAP stream makeup or the organic HAP concentration. Additionally, in Sierra Club, the court remanded to EPA for further explanation of its decision to set a CO limit of 130 ppm as a minimum standard representing MACT for organic HAPs for certain subcategories. The proposed rule explains that in addition to the data used in the 2013 rule to establish the 130 ppm threshold, two other studies, including an EPA MATS study, provide additional support for the 130 ppm minimum standard.
The proposed rule is expected to result in nationwide emission reductions of selected HAPs (i.e., HCl, hydrogen fluoride, Hg, metals) by an additional 37.35 tpy as compared with the current rule. Additionally, the total annualized capital costs of the proposed amendments is $22 million in 2016 dollars, which include costs for control devices, monitoring and testing associated with the proposed changes to the emission limits.
Source categories potentially affected by the propose rule include, but are not limited to, boilers or process heaters used in:
- Extractors of crude petroleum and natural gas;
- Manufacturers of lumber and wood products;
- Pulp and paper mills;
- Chemical manufacturers;
- Petroleum refineries, and manufacturers of coal products;
- Manufacturers of rubber and miscellaneous plastic products;
- Steel works and blast furnaces;
- Electroplating, plating, polishing, anodizing, and coloring;
- Manufacturers of motor vehicle parts and accessories;
- Electric, gas, and sanitary services;
- Health services; and
- Educational services.
EPA will receive comments on the proposed rule for 60 days after publication in the Federal Register.
We are excited to introduce you to Troutman Pepper. Effective today, Troutman Sanders and Pepper Hamilton have merged to form a new law firm, Troutman Pepper (Troutman Pepper Hamilton Sanders LLP), with more than 1,100 attorneys in 23 cities across the country.
The combination expands both the capabilities and the presence of the firm in the U.S., and notably brings new depth to the combined firm’s Environmental Practice, which focuses on health and safety, natural resources, pipelines and litigation and includes more than 50 attorneys in 10 offices nationwide. The Environmental Practice is further supported by attorneys in other practices like Real Estate, Financial Services and Litigation, among others.
The legacy Troutman Sanders Environmental Practice Group was already one of the largest and oldest in the country, and the Troutman Pepper combination strengthens our national capabilities by adding expertise in the Northeast, Midwest and West Coast.
The combined firm offers increased benefits and services to our clients, while retaining the same high commitment to client care that has been a hallmark of both firms. Our environmental expertise across the country includes a broad range of industries, from utilities to airlines to pipelines and manufacturing. The areas of continued focus for the Troutman Pepper combined Environmental Practice Group include:
- Air Quality and Climate Change
- Chemicals, Pesticides and Product Regulation
- Contaminated Site, Waste Management (including Pharmaceutical) and Remediation
- Enforcement Defense and Litigation
- Health and Safety
- Natural Resources
- Pipeline and LNG
- Transactions and Environmental Diligence
- Water Quality and Water Resources
Rankings like Chambers USA, The Legal 500 and Best Lawyers® consistently list Troutman Pepper as a go-to environmental firm. We are recognized by Chambers USA in Georgia, North Carolina and Virginia, with individuals recognized in Georgia, Illinois, New York, North Carolina and Virginia. The Legal 500 recognizes Troutman Pepper nationally in three environmental disciplines: Regulatory, Litigation and Transactional.
U.S. News & World Report – Best Lawyers “Best Law Firms” 2020 National Rankings
- Named “Law Firm of the Year” for Energy
- Nationally ranked in Tier 1 for Environmental Law
- Nationally ranked in Tier 1 for Litigation: Environmental
- Nationally ranked in Tier 2 for Oil and Gas Law
U.S. News & World Report – Best Lawyers 2020 National Rankings
- 15 individuals ranked for Environmental Law
- 8 individuals ranked for Litigation – Environmental
Please continue to follow our Environmental Law & Policy Monitor and Pipelaws blogs to receive the latest news, analysis and commentary on your industry. You can read more about Troutman Pepper and our hallmark focus on client care at troutman.com.
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.