WOTUS Blocked by Yet Another Ruling

As the Supreme Court directed in National Association of Manufacturers v. Department of Defense, challenges to the EPA’s Clean Water Rule or waters of the United States (WOTUS) (June 26, 2015, Federal Register (FR)) must be filed in federal district courts rather than in courts of appeal. This has set the stage for dueling opinions as district court judges take different positions on whether WOTUS, which the EPA has not formally withdrawn, should remain in effect while the Agency works to finalize its proposal to effect that withdrawal. The latest ruling, an injunction issued September 12, 2018, by a judge for the Southern District of Texas, blocks enforcement of WOTUS in Texas, Louisiana, and Mississippi.

Suspension Rule

The injunction comes 1 month following a ruling by a judge with the District of South Carolina, who found that the EPA’s rule to suspend WOTUS while the withdrawal proposal proceeds to finalization violated the Administrative Procedures Act. Accordingly, that judge enjoined the EPA’s Suspension Rule (February 6, 2018, FR) nationwide. But because of other district court WOTUS rulings, the decision effectively reinstated WOTUS in only 26 states, including Texas, Louisiana, and Mississippi.

Ruling for the Public’s Interest

Following reinstatement of WOTUS by the South Carolina judge, the attorneys general of Texas, Louisiana, and Mississippi filed a motion requesting the Texas court to issue a preliminary injunction against WOTUS in those states. In his response, Judge George C. Hanks Jr. noted that to obtain a preliminary injunction, an applicant must demonstrate a substantial likelihood that it will prevail on the merits; a substantial threat that it will suffer irreparable injury if the injunction is not granted; that its threatened injury outweighs the threatened harm to the party whom it seeks to enjoin; and that granting the preliminary injunction is in the public’s interest.

“While each of these factors must be met in order for a preliminary injunction to be granted, a stronger showing of one factor can compensate for a weaker showing of another,” wrote Hanks.

“While the Court does believe that each of the above listed factors for a preliminary injunction have been met, it is the fourth factor pertaining to the public’s interest in this matter that tipped the balance in favor of granting an injunction—and did so to an overwhelming degree,” continued Hanks.

The Burden of WOTUS

The judge went on to explain that absent an injunction enjoining WOTUS, states, their governmental subdivisions, and their citizens will be forced to expend valuable resources and time operationalizing a rule that may not survive judicial review. Furthermore, enforcement of WOTUS will cause economic hardship, including a reduction in the production and refinement of oil and gas resources and added difficulty for agricultural producers to operate their business.

“Accordingly, the Court has decided to avoid the harmful effects of a truncated implementation, and enjoin the Rule’s effectiveness until a permanent decision regarding the Rule’s constitutionality can be made,” Hanks concluded.

While district court judges have the authority to issue injunctions that are effective nationwide, Hanks declined to do so because it was not clear to him that enforcement of WOTUS presents an irreparable harm to those states that were not a party to the litigation before him.