Judge Boyle of the U.S. District Court for the Eastern District of North Carolina denied a Pacific Legal Foundation client's request for an injunction against the EPA and Army Corps of Engineers' latest U.S. Waters rule. The North Carolina challenge came months after the U.S. sued client Robert White for violating the Clean Water Act. White argued that the EPA's latest rule did not comply with Supreme Court decisions. Sackett v. EPA And according to that ruling, there are no U.S. waters on his land, so there are no violations related to the Clean Water Act.
White's arguments are similar, but not identical, to those made by the states of Texas, Idaho, and North Dakota, as well as several NGOs, in previous federal court cases. Just a few days ago, the parties in a challenge pending in federal court in Texas filed briefs in support of a cross motion for summary judgment to end the case. The case also includes a constitutional challenge to the latest Waters of the United States rule, a “leading question” challenge (the basis on which the Supreme Court has invalidated previous EPA and Army Corps of Engineers rules), and a claim that the latest rule was issued in violation of the Administrative Procedure Act (because everything that can be said has already been said countless times, without any opportunity for public comment). We'll see soon whether the Texas judge sees these things the same way as Judge Boyle.
Meanwhile, while the EPA's Waters of the United States rule may still be the law in North Carolina, it's still not the law in the 26 other U.S. states where it's nominally banned.
I still believe there is a better than 50/50 chance that any of the district or appellate courts involved in these challenges will agree with at least some of the plaintiffs’ complaints regarding the Waters of the United States regulations.
Judge Boyle said White and the Pacific Legal Foundation focused on the idea of a “continuous surface connection” to U.S. waters and their “indistinguishability” from U.S. waters. Saket, The independent jurisdiction requirement, Judge Boyle said, “severs one sentence of Sackett from its logical continuity with the rest of the judgment.”
I think Judge Boyle is right in that respect.
However, the latest U.S. Waters Regulations expand Clean Water Act jurisdiction to include “traditional navigable waters, territorial waters, [or] interstate waters,” which is much harder to square with the Supreme Court’s ruling. Saket.
In White's case, that may not have been an issue. And there is certainly a scientific basis for such Clean Water Act jurisdiction. But Justice Alito's Supreme Court opinion in Sackett (and his dissenting opinion in Maui) was not about the overwhelming scientific evidence. It was, [EPA] have the power to regulate in the manner they propose” and SaketThe Court concluded that the Clean Water Act applies only to “wetlands” (and other relatively permanent bodies of water connected to traditional interstate navigable waters) that have continuous surface connection “in their own right” to such “waters of the United States.”
That's why I believe the EPA and Army Corps of Engineers are not yet out of the woods on the brink of litigation as one of the longest-running disputes in environmental law continues.