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States ex rel. Hunter v. United States Environmental Protection Agency

United States District Court, N.D. Oklahoma

May 29, 2019

STATE OF OKLAHOMA ex rel. Mike Hunter, in his official capacity as Attorney General of Oklahoma, Plaintiff,
v.
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

          CLAIRE V. EAGAN UNITED STATES DISTRICT JUDGE.

         Now 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)[1]; 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. # 98).

         I.

         On July 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.[2] 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 2015 Rule.

         Under 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.

         In 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.

         Waterkeeper 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.

         Defendants 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.

         On 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. 15-CV-386-CVE-FHM.[3]

         Defendants 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 injunction.[4]

         II.

         Plaintiffs 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 following:

(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 public interest.

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, ...


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