Preliminary Injunction Granted in N.D. WOTUS Case

Court grants injunction on the basis of Corps' Internal/Deliberative Memos

Judge Ralph Erickson of the United States District Court for the District of North Dakota has entered an injunction against the WOTUS “Clean Water Rule,” which was set to take effect today.  In what must have been a fairly cursory review of the rulemaking’s publicly available documents—the administrative record has yet even to be lodged with any reviewing court—the court concluded that the final rule departs too substantially from Justice Kennedy’s theory of jurisdiction in Rapanos, that it is likely to be found arbitrary and capricious for its having adopted a 4,000 foot cutoff for “other waters,” and that it is likely not a “logical outgrowth” from the proposed rule.

It took a clear interest in the Corps of Engineers’ internal memos leaked last month after the rule was finalized.

Two interesting notes: (1) Contrary to the most recent 8th Circuit opinion, the judge interpreted the Water Act’s grant of original jurisdiction to the courts of appeal, § 509(b)(1), rather restrictively (leaving jurisdiction in the district court!). (2) The court decided it was unnecessary to reach the NEPA issues given its findings on the other claims and their satisfaction of the standards for preliminary relief and imprudent to do so in any event without the administrative record.  But it still took the opportunity to remark that it was “unpersuaded” by the agencies’ NEPA arguments.

The agencies can appeal this order to the court of appeals.  I assume they’ll do so forthwith.  See our post on the Corps’ leaked documents here and our post on the rulemaking finalization here. Because it doesn’t seem to be in wide circulation yet, here’s the opinion.ND Prelim. Injunction

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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