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North Dakota v. U.S. Environmental Protection Agency

ELR Citation: 45 ELR 20159
Nos. 3:15-cv-59, (D.N.D., 08/27/2015) (Erickson, J.)

A district court preliminarily enjoined EPA's and the U.S. Army Corps of Engineers' controversial "waters of the United States" rule. Thirteen states—Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming—challenged the rule, generally arguing that the rule was promulgated in violation of the CWA, APA, and NEPA. The court first ruled that original jurisdiction lies in the district court and not the court of appeals, stating that if the "exceptionally expansive view advocated by the government is adopted, it would encompass virtually all EPA actions" under the CWA, something "precisely contrary" to CWA §509(b)(1)(F)'s grant of jurisdiction. As for the merits, the court found that the states are likely to succeed on their claims. Pointing to the U.S. Supreme Court's decision in Rapanos v. United States, 547 U.S. 715, 36 ELR 20116 (2006), the court found it likely that EPA violated its congressional grant of authority in promulgating the rule because the rule allows EPA to regulate waters that do not have any effect on the "chemical, physical, and biological integrity" of any navigable-in-fact water. The agencies likely violated the APA as well. The rule asserts jurisdiction over waters that are remote and intermittent, yet the agencies failed to establish a "rational connection" as to how these intermittent and remote waters have any nexus to a navigable-in-fact water, rendering the rule arbitrary and capricious. In addition, the rule's definition of "neighboring" is not likely a logical outgrowth of its definition in the proposed rule. The states also demonstrated that they will face irreparable harm absent a preliminary injunction. And a balancing of the harms and analysis of the public interest reveals that the risk of harm to the states is great and the burden on the agencies is slight. The court, therefore, preliminarily enjoined the rule as it applies to the 13 states involved in the case.