News Brief

District Court Halts EPA CWA Rule, Highlighting Fight Over Lawsuit Venue

A federal district court has granted a request from 12 states to immediately block EPA and the Army Corps of Engineers from implementing their Clean Water Act (CWA) jurisdiction rule on its planned effective date of Aug. 28, highlighting a fight over whether federal district courts or appellate courts should hear suits over the rule.
The Aug. 28 opinion and order by U.S. District Court for the District of North Dakota Southeastern Division's Chief District Judge Ralph Erickson also strongly suggests he will find for the states and scrap the rule outright. His order enjoining the agencies from implementing it says the jurisdiction rule is “arbitrary and capricious” as the agencies “failed to establish a 'rational connection between the facts found' and the Rule as it will be promulgated.”  The decision also creates major legal confusion because it asserts the court's authority to hear the states' challenge to the rule even though the U.S. Court of Appeals for the 6th Circuit recently consolidated a host of appellate suits over the regulation in a still-pending case -- and at press time it was unclear how the situation might be resolved.
Erickson concludes he has jurisdiction to hear the suit because only CWA rules that establish effluent limits and “other limitations” must be heard in appeals court, whereas EPA's rule defines waters of the United States.

After concluding the district court has authority to hear the suit, Erickson then attacks the merits of the regulation. EPA and the Corps issued the rule in a bid to resolve uncertainty over the CWA's scope following Supreme Court rulings that created competing tests for jurisdiction. Supporters say the rule provides much-needed certainty on the law's reach, but critics counter that it expands the scope of the CWA far beyond what Congress intended.

A coalition of 13 states opposed to the rule, led by North Dakota, filed suit in the state's federal district court and urged it to block the agencies from implementing the rule as planned Aug. 28. They claimed that they face major harms from the rule due to the costs of new studies, permitting and other work they will have to do under the rule.

Erickson says the states are likely to succeed in their challenge because “it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule at issue, and it appears likely the EPA failed to comply with APA requirements when promulgating the Rule.”
The order says EPA and the Corps in issuing the rule violated the CWA by overstepping the parameters laid out in Rapanos v. United States, the 2006 Supreme Court ruling that created the competing jurisdiction tests., Aug. 28, 2015