United States District Court, N.D. Oklahoma
STATE OF OKLAHOMA ex rel. Mike Hunter, in his official capacity as Attorney General of Oklahoma, Plaintiff,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, UNITED STATES ARMY CORPS OF ENGINEERS, ANDREW WHEELER, in his official capacity as Acting Administrator of the United States Environmental Protection Agency, and RICKEY JAMES, in his official capacity as Assistant Secretary of the Army for Civil Works, Defendants/Consolidated and CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, NATIONAL FEDERATION OF INDEPENDENT BUSINESS, TULSA REGIONAL CHAMBER, PORTLAND CEMENT ASSOCIATION, and STATE CHAMBER OF OKLAHOMA Consolidated Plaintiffs, Defendants.
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE.
before the Court are the following motions: Plaintiff's
Motion for a Preliminary Injunction (No. 15-CV-381-CVE-FHM,
Dkt. # 17); Plaintiffs' Motion for Preliminary Injunction
(No. 15-CV-386-CVE-FHM, Dkt. # 27); Defendants' Motion
and Memorandum in Support Thereof to Stay Proceedings Pending
a Ruling from the United States Court of Appeals for the
Sixth Circuit on Subject-Matter Jurisdiction (No.
15-CV-381-CVE-FHM, Dkt. # 25); Defendants' Motion and
Memorandum in Support Thereof to Stay Proceedings Pending a
Ruling from the United States Court of Appeals for the Sixth
Circuit on Subject-Matter Jurisdiction (No.
15-CV-386-CVE-FHM, Dkt. # 39); the Motion to Intervene as
Defendants (No. 15-CV-381-CVE-FHM, Dkt. # 64); the Motion to
Intervene as Defendants (No. 15-CV-386-CVE-FHM, Dkt. # 74);
Waterkeeper Alliance Et Al's Motion and Memorandum in
Support of Leave to File Brief in Opposition to
Plaintiff's Request for Preliminary Injunction (No.
15-CV-381-CVE-FHM, Dkt. ## 74, 75); Waterkeeper Alliance Et
Al's Motion and Memorandum in Support of Leave to File
Brief in Opposition to Plaintiff's Request for
Preliminary Injunction (No. 15-CV-386-CVE-FHM, Dkt. ## 87,
88); the Renewed Motion and Memorandum to Allow Filing of
Brief or Proposed Brief in Opposition to Motions for
Injunctive Relief and Memorandum (No. 15-CV-381-CVE-FHM, Dkt.
8, 2015, the State of Oklahoma filed a case challenging the
validity of a new rule adopted by the United States
Environmental Protection Agency (EPA) and the United States
Army Corps of Engineers (Cops of Engineers). State of
Oklahoma ex rel. E. Scott Pruitt v. United States
Environmental Protection Agency et al.,
15-CV-381-CVE-FHM (N.D. Okla.). The rule is known as the
“Clean Water Rule” and it would expand federal
jurisdiction under the Clean Water Act (CWA) to bodies of
water that were previously not regulated by the federal
government. Clean Water Rule: Definition of
“Waters of the United States, ” 80 Fed. Reg.
37054 (June 29, 2015). A separate case challenging the 2015
Rule was filed by the Chamber of Commerce of the United
States of America and other plaintiffs. Chamber of
Commerce of the United States of America et al. v. United
States Environmental Protection Agency et al,
15-CV-386-CVE-FHM (N.D. Okla.). The plaintiffs in both cases
asked the Court to declare the 2015 Rule invalid and to
permanently enjoin the defendants from enforcing the 2015
Rule. The plaintiffs also filed motions for preliminary
injunction seeking to prevent the defendants from enforcing
the 2015 Rule while the cases are pending. No.
15-CV-381-CVE-FHM, Dkt. # 17; No. 15-CV-386-CVE-FHM, Dkt. #
27. The plaintiffs in No. 15-CV-386-CVE-FHM also filed
motions to consolidate both pending cases challenging the
the CWA, 33 U.S.C. § 1251 et seq., certain
types of cases are subject to direct review in the courts of
appeals and cannot be brought in federal district court.
Numerous cases were filed in federal district courts across
the country and, in addition, at least 21 petitions for
review were filed in the federal courts of appeal. Pursuant
to 28 U.S.C. § 2112(a)(3), the Judicial Panel on
Multidistrict Litigation (JPML) transferred all pending
petitions for review to the United States Court of Appeals
for the Sixth Circuit and the petitions were consolidated
before a single panel. The Sixth Circuit stayed enforcement
of the 2015 Rule nationwide pending a determination of
whether it could exercise jurisdiction over the case. In
re EPA, 308 F.3d 804 (6th Cir. 2015). On February 22,
2016, the Sixth Circuit ruled that it had jurisdiction over
the consolidated petitions for review and it retained
jurisdiction over the consolidated petitions for review.
light of the Sixth Circuit's decision, this Court
dismissed plaintiffs' claims for lack of subject matter
jurisdiction. The plaintiffs appealed the Court's ruling
to the Tenth Circuit Court of Appeals, but the appeal was
held in abatement pending a ruling by the Supreme Court in a
case that would decide whether the Sixth Circuit had
jurisdiction over the consolidated appeals. In National
Association of Manufacturers v. Department of Defense,
136 S.Ct. 617 (2018), the Supreme Court determined that
challenges to the 2015 Rule should be filed in federal
district courts, and the Sixth Circuit lacked jurisdiction
over the consolidated appeals. The Tenth Circuit reversed
this Court's dismissal for lack of jurisdiction and
remanded the cases for further proceedings. Chamber of
Commerce of United States v. United States Environmental
Protection Agency, 709 Fed.Appx. 526 (10th Cir. Jan 29,
2018). The Court reopened the cases and reinstated
plaintiffs' motions for preliminary injunction.
Alliance and Grand Riverkeeper and Tar Creekkeeper
(Waterkeeper Alliance), projects of the Local Environmental
Action Demand Agency, Inc. (L.E.A.D. Agency), filed motions
seeking leave to intervene as defendants. The Waterkeeper
Alliance states that it is a long-standing advocate of clean
water issues in Oklahoma and nationally, and it participated
in the rulemaking process that led to the adoption of the
2015 Rule. No. 15-CV-381-CVE-FHM, Dkt. # 64, at 4. The
proposed intervenors claim that they “regularly live,
work, and recreate in and around water bodies that may lose
[CWA] protections” if the plaintiffs prevail, and they
argue that they will be unable to protect this interest
unless they are permitted to intervene. Id. at 5.
Waterkeeper Alliance and L.E.A.D. Agency also request leave
to file a briefs in opposition to the plaintiffs' motions
for preliminary injunction. The plaintiffs oppose WaterKeeper
Alliance and L.E.A.D. Agency's request to file a brief in
opposition to plaintiffs' motions for preliminary
injunction, because this would delay a ruling on their
motions for preliminary injunction.
filed a status report (No. 15-CV-381-CVE-FHM; Dkt. # 91)
advising the Court as to the status of the 2015 Rule and
subsequent rulemaking proceedings that have taken place since
the rule was enacted. On February 28, 2017, the President of
the United States signed an executive order directing the
relevant federal agencies to rescind or revise the 2015 Rule.
Dkt. # 91, at 1. A proposed rule that would rescind the 2015
Rule has been published and the comment period has closed,
and the proposed rule remains under consideration.
Id. at 2. In February 2018, federal agencies
finalized a rule that would have placed an applicability date
of February 6, 2020 on the 2015 rule, and this would have
temporarily restored the “Waters of the United
States” rule in effect before 2015. Id. The
applicability rule has been challenged in several federal
district courts, and two district courts have entered
nationwide injunctions enjoining enforcement of the
applicability rule. Id. at 2-3. The 2015 Rule is
currently in effect in 22 states, including Oklahoma.
Id. at 3. Federal agencies have now proposed a
second rule that would revise the 2015 Rule to define
“Waters of the United States” consistently with
the pre-2015 regulations, and the comment period for the
proposed rule has closed. Id. Between August 16 and
December 19, 2018, the Corps of Engineers had taken 112 final
permit actions to authorize the discharge of dredged or fill
material at sites in Oklahoma, and 50 permit actions were
still pending as of the date the status report was filed.
Id. at 5. The Corps of Engineers issued 23 approved
jurisdictional determinations during that time finding that
certain waters qualified as “Waters of the United
States, ” but defendants could not state whether the
waters at issue would or would not have qualified under a
prior definition of “Waters of the United
States.” Id. at 5. Defendants state that it
they are not aware of any current administrative or civil
action taken pursuant to the 2015 Rule. Id.
December 21, 2018, the Court held a status conference in both
pending cases, and granted the motions to consolidate. No.
15-CV-381-CVE-FHM; Dkt. # 92. The Court set a schedule for
supplemental briefing on plaintiffs' motions for
preliminary injunction, and the parties were advised that the
motions to intervene would remain under advisement.
Id. In their supplemental brief, plaintiffs argue
that the State of Oklahoma (the State) has been denied its
sovereign authority to regulate waters within its boundaries
because of the 2015 Rule. No. 15-CV-381-CVE-FHM, Dkt. # 96,
at 7. The State also argues that it will incur compliance and
administrative costs that cannot be recovered as monetary
damages. Id. at 8. Plaintiffs attached the
declaration of Shellie McClary, the Water Quality Division
Director for the Oklahoma Department of Environmental Quality
(ODEQ), to their motion for preliminary injunction (No.
15-CV-381-CVE-FHM, Dkt. # 17-1), and they have included a
supplemental declaration (No. 15-CV-381-CVE-FHM, Dkt. # 96-2)
of the current water quality director for ODEQ, Shellie
Chard, with their supplemental brief. Teena Gunter, general
counsel for the Oklahoma Department of Agriculture, Food, and
Forestry, is responsible for implementing various laws
governing the agriculture industry, and this includes laws
concerning the discharge of pollutants. No.
15-CV-381-CVE-FHM, Dkt. # 96-1. She states that an expanded
definition of “Waters of the United States” could
subject more concentrated animal feeding operations (CAFO) to
federal regulation, and this could lead to civil and criminal
penalties for any CAFO that discharges pollutants into waters
falling within the scope of the 2015 Rule. Id. at 2.
Plaintiffs have re-submitted the declarations of Michael
Jacobs and Leo Stevens that were attached to the original
motion for preliminary injunction filed in No.
have filed a supplemental response and they decline to take a
position on the merits of plaintiffs' claims. No.
15-CV-381-CVE-FHM, Dkt. # 103. Defendants state that there is
an ongoing rulemaking process and many of the comments
submitted as part of the rulemaking “mirror the
arguments made in this case.” Id. at 9.
However, defendants have made arguments as to other issues
concerning plaintiffs' motions for a preliminary
seek a preliminary injunction enjoining the defendants from
enforcing the 2015 Rule until a final judgment is entered in
this case, and they raise a series of constitutional and
statutory arguments in support of their motion. A preliminary
injunction is an “extraordinary equitable remedy
designed to ‘preserve the relative positions of the
parties until a trial on the merits can be held.'”
Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1225
(10th Cir. 2009) (quoting Univ. Of Tex. v.
Camenisch, 451 U.S. 390, 395 (1981)). To be entitled to
a preliminary injunction, the moving party must establish the
(1) a substantial likelihood of success on the merits of the
case; (2) irreparable injury to the movant if the preliminary
injunction is denied; (3) the threatened injury to the movant
outweighs the injury to the other party under the preliminary
injunction; and (4) the injunction is not adverse to the
Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir.
2001). “Because a preliminary injunction is an
extraordinary remedy, the right to relief must be clear and
unequivocal.” Utah Licensed Beverage Ass'n v.
Leavitt, 256 F.3d 1061, 1066 (10th Cir. 2001) (quoting
SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096,
1098 (10th Cir. 1991)); see also Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997) (“It is
frequently is observed that a preliminary injunction is an
extraordinary remedy, ...