States suing federal agencies have recently convinced two courts to put two major federal rules on hold, nationwide, pending further review.
- Last Friday, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the recently published "Waters of the United States" Rule, which was promulgated jointly by the EPA and the Army Corps of Engineers.
The WOTUS rule—as it is often known—defines the term "Waters of the United States," the key definitional term in the Clean Water Act for the scope of federal jurisdiction. Categorization of a water or land feature as a "Water of the United States" triggers numerous requirements on private parties and States. The federal agencies say the rule is necessary to provide clarity and "does not protect any new types of waters." Critics say the rule "will radically expand federal jurisdiction over land use" and reach puddles, ponds, and ditches.
For reasons peculiar to the Clean Water Act, the numerous court challenges that have been brought against the WOTUS rule—by States, state agencies, and numerous private entities—are proceeding in parallel tracks in the federal district courts and in the Sixth Circuit. In brief, certain types of challenges under the CWA must be brought directly to the courts of appeals, and federal law further provides that all such cases must be consolidated by lottery in one such court. The Sixth Circuit won that lottery. But there is a dispute over whether the challenges to the WOTUS rule are in fact of the type that must be brought directly to the courts of appeals, which is why the challengers have at the same time filed parallel suits in federal district courts across the country. (Full disclosure: On behalf of West Virginia Attorney General Patrick Morrisey, I am counsel of record for the State of West Virginia in the State's challenges to the WOTUS rule.)
The Sixth Circuit is now considering whether it has jurisdiction over the WOTUS rule challenges, and 18 States and state agencies (including West Virginia) asked the court to stay the rule in the meantime.
In Friday's order, the Sixth Circuit granted the nationwide stay, 2 votes to 1, concluding that the States and state agencies had "demonstrated a substantial possibility of success on the merits of their claims." The appeals court emphasized two points relating to certain bright-line distance limitations used in the WOTUS rule: (1) "it is far from clear that the new Rule’s distance limitations are harmonious with" the Supreme Court's decision in Rapanos v. United States, 547 U.S. 715 (2006); and (2) "the rulemaking process by which the distance limitations were adopted is facially suspect."
Joined by Judge Richard Griffin, Judge David McKeague stressed the need to maintain the status quo in light of the breadth of the rule and the rule's questionable legality:
[T]he sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being.
A stay allows for a more deliberate determination whether this exercise of Executive power, enabled by Congress and explicated by the Supreme Court, is proper under the dictates of federal law. A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing. A stay honors the policy of cooperative federalism that informs the Clean Water Act and must attend the shared responsibility for safeguarding the nation’s waters.
Judge Damon Keith dissented, though he did not express disagreement with the majority's assessment of the merits. Instead, he argued that the court was acting prematurely, concluding "that it is not prudent for a court to act before it determines that it has subject-matter jurisdiction."
- On September 30, the U.S. District Court for the District of Wyoming granted a nationwide preliminary injunction, prohibiting the United States Bureau of Land Management from enforcing a new rule regulating hydraulic fracturing on federal and Indian lands.
Four States (Wyoming, Colorado, North Dakota, and Utah), an Indian tribe, and several private parties challenged the rule in federal district court. BLM says the rule responds to "public concern about whether fracturing can lead to or cause the contamination of underground water sources." The challengers say "the rule is not properly justified and duplicates state regulation."
Granting the preliminary injunction in a 54-page order, Judge Scott Skavdahl found that the challengers are likely to succeed on the merits and that they are suffering irreparable harm. Among other arguments, Judge Skavdahl agreed that BLM appears not to have authority to regulate hydraulic fracturing.
Congress has not authorized or delegated to the BLM authority to regulate hydraulic fracturing and, under our constitutional structure, it is only through Congressional action that the BLM can acquire this authority.
He also found the rule likely to be unlawfully arbitrary and capricious because "BLM has n[ot] substantiated the existence of a problem this rule is meant to address." In other words, "the Fracking Rule seems a remedy in search of harm."
As for irreparable harm, Judge Skavdahl concluded that the rule interferes with States' sovereign interests by "creat[ing] an overlapping federal regime, in the absence of Congressional authority to do so."