Clean Water Rule Litigation Update: Let's All Just Take a Breath

If you're following the legal fallout from the Obama Administration's finalization of its initiative to protect critical streams and wetlands - called the Clean Water Rule - you were probably on the lookout for action this week. (And, you're a bit odd. It's OK - me too.)

That's because the rule, which the Environmental Protection Agency Administrator, Gina McCarthy, and the Assistant Secretary of the Army for Civil Works, Jo-Ellen Darcy, signed back in May, was scheduled to take effect today.

That didn't entirely happen as planned, due to a single court ruling yesterday. More on that in a minute, but first some background to provide context for my ultimate message in this post: this is just part of the process, and there is no need to overreact to a preliminary ruling in one case.

The Clean Water Rule

Kids in 4mi Run.jpgThe Clean Water Rule restores important safeguards that once existed for a variety of water bodies. Those safeguards were eroded by policies the Bush administration adopted after a pair of Supreme Court decisions. They were policies that affected streams -- including headwater, seasonal, and rain-dependent streams -- that feed downstream waterways. These streams contribute to the drinking water supply of one in three Americans.

The rule likewise restores prior protections for many critical wetlands.

While these water bodies historically received the same protections as other waters under the Clean Water Act, in recent years the legal uncertainty spawned by the Court's rulings and the subsequent policies left roughly 60 percent of the nation's stream miles and tens of millions of acres of wetlands without guaranteed protection from pollution and other harms. In developing a rule to address this mess, EPA produced and relied heavily on an extensively peer-reviewed scientific report confirming that streams and wetlands are connected to downstream waters in significant ways.

The Clean Water Rule, then, is a major milestone in ensuring that waterways our families depend on are healthy, as I discussed in a post when the rule was announced. For more detail on the importance of the rule and the resources it helps protect, please take a look at a great set of fact sheets that a broad coalition of conservation, public health, and sportsmen groups developed, which address the benefits to small business, hunting and fishing, and public health.

The Litigation

It is rare for an EPA rule not to be challenged in court, especially one as important as the Clean Water Rule, and there has been no shortage of cases since the rule was published. As of this writing, there are 10 federal trial-level courts ("district courts") in which 12 separate challenges to the rule have been filed. Those courts and cases are listed below.

  • District of North Dakota: State of North Dakota et al. v. EPA et al.
  • Northern District of West Virginia: Murray Energy Corp. v. EPA et al.
  • Southern District of Ohio: State of Ohio et al. v. Army Corps of Engineers et al.
  • Southern District of Texas: State of Texas et al. v. EPA et al. and American Farm Bureau Federation et al. v. EPA et al.
  • Southern District of Georgia: State of Georgia et al. v. Gina McCarthy et al.
  • Northern District of Oklahoma: Chamber of Commerce of the United States of America et al. v. EPA et al. and State of Oklahoma v. EPA et al.
  • Northern District of Georgia: Southeastern Legal Foundation, Inc., et al. v. EPA et al.
  • District of Minnesota: Washington Cattlemen's Association et al. v. EPA et al.
  • Western District of Washington: Puget Soundkeeper Alliance et al. v. Gina McCarthy et al.
  • District for the District of Columbia: Natural Resources Defense Council, Inc. et al. v. EPA et al.

A quick aside on the last one in the list above: NRDC and our partners have filed our own targeted challenge to the rule. We think the Clean Water Rule is a good rule that could, and should, be even better. We have resisted, and will continue to resist, efforts to postpone, weaken, or kill the rule, because Americans want more, not less, protection for their drinking-water supplies and the water bodies their families swim in, fish from, and boat on. Although the rule is a big step forward, we believe that, as written, it leaves some waters inadequately protected without justification. We have sued to make sure the rule protects the waters it should and treats similar waters in a similar manner. Our challenge to the rule is narrow, however, and we are not seeking to have the entire rule vacated. We have also moved to intervene in the several sweeping lawsuits that challenge the rule as too strong.

For reasons interesting only to the truly nerdy (again, me), challenges to the rule were also filed in eight different federal appeals courts. That's because there is a dispute over whether the Clean Water Act requires the case to be heard at the appellate court level or the district court level. Those challenges have all been consolidated into one single action that's now pending in the U.S. Court of Appeals for the Sixth Circuit, in Cincinnati.

What Happened this Week

In the run-up to the rule's implementation date today, a number of the parties that sued the agencies claiming that the rule is too protective of the nation's water resources asked four trial-level courts to block the rule from taking effect. One of these courts, in Oklahoma, where two cases were pending, granted the federal government's request weeks ago to put those cases on hold while the government seeks to have the cases transferred and consolidated in Washington, DC. The other three courts - located in Georgia, North Dakota, and West Virginia - all issued rulings this week. (All but one of the remaining district courts with pending challenges from state or industry opponents have postponed any further proceedings in the cases, at the federal government's request. Similar requests are pending in the challenges that the conservation groups have filed.)

Of the three courts that issued rulings this week on opponents' requests to delay the rule, two of them, the Northern District of West Virginia and the Southern District of Georgia, both refused to grant the delay and held instead that the cases should be heard by the appellate court.

That leaves one court - the District of North Dakota - which ruled yesterday that it both has the jurisdiction to decide the case and that it should temporarily prevent implementation of the rule while the case is more fully argued. The court concluded that the state plaintiffs in that case, led by North Dakota, were likely to prevail on their legal claims that the rule was too protective, and that the states would be harmed by the rule taking effect.

Although we are still reviewing the decision closely and evaluating our options for next steps, we profoundly disagree with the court's conclusion that the extraordinary remedy of an injunction is justified here, and are disappointed that the rule's implementation will be delayed, at least to some extent. Every day the rule is not in force in a given place, the streams, ponds, and wetlands that people swim in, fish from, boat on, and depend on for drinking water are at unnecessary risk of being polluted or destroyed.

At the same time, let's see this ruling for what it is - a temporary delay in one of a dozen or so cases. Indeed, the agencies have explained that the Clean Water Rule will take effect today for those states not involved in the North Dakota litigation. And, even in that case, proponents of the Clean Water Rule will have additional opportunities to explain why the rule's safeguards are well within the bounds established by the Supreme Court and are supported by the voluminous scientific evidence of the importance of the waters that the rule protects.

Consider a recent point of reference: the Affordable Care Act was found to be invalid by some different courts when it was similarly challenged in a number of places. At the end of the day, however, it was twice upheld by the Supreme Court, and is now the law of the land.

Cases such as that, plus the certainty that the Clean Water Act authorizes the agencies to protect those water bodies that significantly affect downstream waters, give me confidence that, despite the delay in this instance, the cases attacking the rule as too protective will ultimately fail. When that happens, the rule will remain in place with necessary protections for the health and well-being of our families and communities, as well as our prosperous fisheries and tourism industries.

Inhale, exhale, repeat.

About the Authors

Jon Devine

Senior Attorney, Water program

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