State of Colorado v. EPA ( 2021 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 2, 2021
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
THE STATE OF COLORADO,
Plaintiff - Appellee,
v. Nos. 20-1238, 20-1262, and 20-1263
U.S. ENVIRONMENTAL PROTECTION
AGENCY; JANE NISHIDA, in her
official capacity as Acting Administrator of
the U.S. Environmental Protection Agency;
U.S. ARMY CORPS OF ENGINEERS;
VANCE F. STEWART, III,  in his
official capacity as the Senior Official
Performing the Duties of Assistant
Secretary of the Army for Civil Works,
Defendants - Appellants,
and
CHANTELL SACKETT; MICHAEL
SACKETT; AMERICAN FARM
BUREAU FEDERATION; AMERICAN
PETROLEUM INSTITUTE; AMERICAN
ROAD AND TRANSPORTATION
BUILDERS ASSOCIATION; CHAMBER
OF COMMERCE OF THE UNITED
STATES OF AMERICA; LEADING
BUILDERS OF AMERICA; NATIONAL

Jane Nishida, in her official capacity as Acting Administrator of the U.S.
Environmental Protection Agency, is substituted for Andrew Wheeler pursuant to
Federal Rule of Appellate Procedure 43(c)(2).

Vance F. Stewart, III, in his official capacity as the Senior Official
Performing the Duties of Assistant Secretary of the Army for Civil Works, is
substituted for R.D. James pursuant to Federal Rule of Appellate Procedure 43(c)(2).
ALLIANCE OF FOREST OWNERS;
NATIONAL ASSOCIATION OF HOME
BUILDERS; NATIONAL
CATTLEMEN’S BEEF ASSOCIATION;
NATIONAL CORN GROWERS
ASSOCIATION; NATIONAL MINING
ASSOCIATION; NATIONAL PORK
PRODUCERS COUNCIL; NATIONAL
STONE, SAND, AND GRAVEL
ASSOCIATION; PUBLIC LANDS
COUNCIL; U.S. POULTRY & EGG
ASSOCIATION; AMIGOS BRAVOS;
NEW MEXICO ACEQUIA
ASSOCIATION; GILA RESOURCES
INFORMATION PROJECT,
Intervenor Defendants - Appellants.
——————————
COLORADO WATER CONGRESS;
COLORADO FARM BUREAU;
COLORADO DAIRY FARMERS;
COLORADO PORK PRODUCERS
COUNCIL; COLORADO LIVESTOCK
ASSOCIATION; COLORADO
CATTLEMEN’S ASSOCIATION;
COLORADO CORN GROWERS
ASSOCIATION; NAVAJO NATION;
AMIGOS BRAVOS; NEW MEXICO
ACEQUIA ASSOCIATION; GILA
RIVER RESOURCES INFORMATION
PROJECT; INSTITUTE FOR POLICY
INTEGRITY; WESTERN RESOURCE
ADVOCATES; CONSERVATION
COLORADO,
Amici Curiae.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:20-CV-01461-WJM-NRN)
2
_________________________________
Jonathan D. Brightbill, Deputy Assistant Attorney General, United States Department of
Justice, Environment and Natural Resources Division, Washington, D.C. (Jeffrey Bossert
Clark, Assistant Attorney General; Eric Grant, Deputy Assistant Attorney General; and
Brian C. Toth and Robert J. Lundman, Attorneys, United States Department of Justice,
Environment and Natural Resources Division, Washington, D.C.; and Matthew Z.
Leopold, General Counsel; David Fotouhi, Principal Deputy General Counsel, U.S.
Environmental Protection Agency; and Craig Schmauder, Deputy General Counsel,
Department of the Army; and David R. Cooper, Chief Counsel, U.S. Army Corps of
Engineers, with him on the briefs), for Defendants-Appellants.
Glenn E. Roper, Pacific Legal Foundation, Highlands Ranch, Colorado (Anthony L.
Francois and Charles T. Yates, Pacific Legal Foundation, Sacramento, California, with
him on the briefs), for Intervenor Defendants-Appellants Chantell and Michael Sackett.
Timothy S. Bishop (Brett E. Legner and Colleen M. Campbell, with him on the
briefs), Mayer Brown, Washington, D.C., for Intervenor Defendants-Appellants
American Farm Bureau Federation; American Petroleum Institute; American Road and
Transportation Builders Association; Chamber of Commerce of the United States of
America; Leading Builders of America; National Alliance of Forest Owners; National
Association of Home Builders; National Cattlemen’s Beef Association; National Corn
Growers Association; National Mining Association; National Pork Producers Council;
National Stone, Sand, and Gravel Association; Public Lands Council; and U.S. Poultry &
Egg Association.
Eric Olsen (Philip J. Weiser, Colorado Attorney General; Carrie Noteboom, First
Assistant Colorado Attorney General; Annette Quill and Jennifer H. Hunt, Senior
Assistant Attorneys General, with him on the briefs), Denver, Colorado, for Plaintiff-
Appellee.
Stephen H. Leonhardt, Scott A. Clark, and April D. Hendricks, Burns, Figa & Will, P.C.,
Greenwood Village, Colorado, filed an amicus brief on behalf of Colorado Water
Congress.
Stephen H. Leonhardt, Scott A. Clark, April D. Hendricks, and Kole W. Kelley, Burns,
Figa & Will, P.C., Greenwood Village, Colorado, filed an amicus brief on behalf of
Colorado Farm Bureau, Colorado Dairy Farmers, Colorado Pork Producers Council,
Colorado Livestock Association, Colorado Cattlemen’s Association, and Colorado Corn
Growers Association.
Jill Elise Grant and Ian Paul Fisher, Jill Grant & Associates, Washington, D.C.; and
Doreen N. McPaul, Attorney General, Paul Spruhan, Assistant Attorney General, and
3
Michelle Brown Yazzie, Navajo Nation Department of Justice, Window Rock, Arizona,
filed an amicus brief on behalf of Navajo Nation.
J. Blanding Holman IV, Megan Hinkle Huynh, and Carl Brzorad, Southern
Environmental Law Center, Charleston, South Carolina; Charles de Saillan, Douglas
Meiklejohn, and Eric Jantz, New Mexico Environmental Law Center, Santa Fe, New
Mexico; and Enrique Romero, New Mexico Acequia Association, Santa Fe, New
Mexico, filed an amicus brief on behalf of Amigos Bravos, New Mexico Acequia
Association, and Gila River Resources Information Project.
Richard L. Revesz, Bethany A. Davis Noll, Max Sarinsky, and Jason A. Schwartz,
Institute for Policy Integrity, New York, New York, filed an amicus brief on behalf of
Institute for Policy Integrity.
Joro Walker, Western Resource Advocates, Boulder, Colorado, filed an amicus brief on
behalf of Western Resource Advocates and Conservation Colorado.
_________________________________
Before McHUGH, BALDOCK, and EID, Circuit Judges.
_________________________________
BALDOCK, Circuit Judge.
_________________________________
These are consolidated appeals about what are the “waters of the United
States.” That statutory phrase—a key component of the Clean Water Act—has been
the subject of ongoing debate for nearly five decades. Yet the meaning of the phrase,
which the Act does not define, remains elusive and unpredictable. In April 2020, the
Environmental Protection Agency and the Army Corps of Engineers once again tried
their hands at defining the phrase through a regulation called the Navigable Waters
Protection Rule (NWPR).
Colorado swiftly challenged the NWPR in federal court, arguing the new rule,
despite its name, does very little to protect waters of the United States and is both
substantively and procedurally flawed. Before the NWPR took effect, Colorado
4
asked the district court to enjoin the Agencies from implementing the rule pending a
determination on the merits of the case. The district court obliged; it issued an order
staying the effective date of the NWPR and preliminarily enjoining the Agencies to
continue administering the Clean Water Act under the then-current regulations.
The question before us is straightforward: Did the district court abuse its
discretion when it granted Colorado injunctive relief? The answer is yes. Colorado
asked for immediate relief but hasn’t shown it will suffer irreparable injury absent a
preliminary injunction. Because that alone compels us to reverse, we do not consider
the other preliminary injunction factors. Exercising jurisdiction under 28 U.S.C.
§ 1292, we therefore reverse and vacate the district court’s order.
I.
The particulars of this case, like so many others, flow from the “notoriously
unclear” reach of the Clean Water Act. Sackett v. E.P.A., 566 U.S. 120, 132 (2012)
(Alito, J., concurring). So the reader knows what all the fuss is about, we first review
the legislative, administrative, and judicial events relevant to our inquiry. We then
recount how these appeals unfolded.
A.
1.
Congress passed the Clean Water Act in 1972 “to restore and maintain the
chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C.
§ 1251(a). To that end, the Act prohibits “the discharge of any pollutant by any
person” without a permit into “navigable waters,” which it defines as “waters of the
5
United States.” Id. §§ 1311(a), 1362(7), (12). Among the important exceptions to
this general prohibition are two permitting schemes that authorize the discharge of
pollutants into waters covered by the Act. Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138
S. Ct. 617, 625 (2018).
The first is the National Pollutant Discharge Elimination System program,
colloquially known as the Section 402 permit process, which authorizes the discharge
of pollutants other than dredged or fill material. 33 U.S.C. § 1342. The second
program authorizes the Corps to issue Section 404 permits for the discharge of
dredged or fill material, which “are solids that do not readily wash downstream.”
Rapanos v. United States, 547 U.S. 715, 723 (2006) (plurality opinion); see also
§ 1344 (granting the Secretary of the Army, acting through the Corps, authority to
issue permits). Both programs let states operate their own permitting schemes for
waters within their respective borders. §§ 1342(b), 1344(g). Although many states
operate their own Section 402 program, only two have opted to assume Section 404
permitting authority for dredged and fill material.
Obtaining a permit through these programs is a costly and lengthy process,
U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807, 1812 (2016), but
failing to comply can come at an even steeper price. The Clean Water Act imposes
significant criminal and civil penalties for polluting waters covered by the Act
without a permit. §§ 1319(c), (d). Despite these important consequences, Congress
did not define what it meant by “waters of the United States.” Rather than provide a
6
reasonably clear rule regarding the scope of the Clean Water Act, Congress delegated
that duty to the EPA and the Corps.
2.
Unsurprisingly, the Agencies have struggled for more than forty years with the
“contentious and difficult task” of defining “waters of the United States.” Nat’l
Ass’n of Mfrs., 138 S. Ct. at 624. The Supreme Court has, in turn, examined their
efforts on several occasions. First, in United States v. Riverside Bayview Homes, 474
U.S. 121 (1985), the Court deferred to a regulation that extended the Corps’
jurisdiction under § 1344 to wetlands “adjacent to navigable or interstate waters and
their tributaries.” Id. at 129, 135. In doing so, the Court signaled that the term
“waters of the United States” includes something more than traditional navigable-in-
fact waters. Id. at 133.
Several years later, in Solid Waste Agency of Northern Cook County v. U.S.
Army Corps of Engineers, 531 U.S. 159 (2001), the Court rejected the Corps’
assertion of regulatory jurisdiction over an abandoned sand and gravel pit that
“seasonally ponded” but was not adjacent to open water. Id. at 162, 164. The Court
held that the Clean Water Act could not be interpreted to cover “nonnavigable,
isolated, intrastate waters” because the term “navigable” must be given meaning
within the context and application of the statute. Id. at 172; see also id. at 168 (“In
order to rule for [the Corps] here, we would have to hold that the jurisdiction of the
Corps extends to ponds that are not adjacent to open water. But . . . the text of the
statute will not allow this.”).
7
The Court most recently considered the breadth of the Corps’ jurisdiction over
wetlands in Rapanos v. United States, 547 U.S. 715 (2006). In two consolidated
appeals from decisions upholding jurisdictional determinations, the Court attempted
to shed light on when wetlands not adjacent to navigable-in-fact waters are waters of
the United States. Five Justices concluded remand was necessary for consideration
of whether the Corps had overextended its regulatory jurisdiction under the Clean
Water Act. Id. at 757 (plurality opinion); id. at 786–87 (Kennedy, J., concurring).
But unfortunately, Rapanos produced no majority opinion “on precisely how to read
Congress’ limits on the reach of the Clean Water Act” and left interested parties “to
feel their way on a case-by-case basis.” Id. at 758 (Roberts, C.J., concurring).
The Rapanos plurality suggested wetlands fall within the scope of the Act only
when they (1) are adjacent to a “relatively permanent body of water connected to
traditional interstate navigable waters” and (2) have “a continuous surface connection
with that water.” Id. at 742 (plurality opinion). Justice Kennedy, concurring in the
judgment to reverse, found the plurality’s test too limiting. Id. at 776–78 (Kennedy,
J., concurring in the judgment). Instead, he articulated an alternative formulation,
under which “the Corps’ jurisdiction over [adjacent] wetlands depends upon the
existence of a significant nexus between the wetlands in question and navigable
waters in the traditional sense.” Id. at 779. The requisite nexus exists, Justice
Kennedy explained, “if the wetlands, either alone or in combination with similarly
situated lands in the region, significantly affect the chemical, physical, and biological
integrity of other covered waters more readily understood as ‘navigable.’” Id. at 780.
8
The dissent found both of these tests too restrictive; it would have deferred to what it
viewed as the Corps’ reasonable interpretation of “waters of the United States” and
upheld the agency’s jurisdictional determinations. Id. at 796 (Stevens, J., dissenting).
After Rapanos, the EPA and the Corps issued internal guidance explaining
they would apply their regulations consistent with Justice Kennedy’s significant-
nexus test. And in 2015, the Agencies formally incorporated the significant-nexus
standard as the legal touchtone for the new regulatory definition of waters of the
United States. Clean Water Rule: Definition of “Waters of the United States,” 80
Fed. Reg. 37,054, 37,060 (June 29, 2015). The Agencies’ attempt to redefine the key
statutory phrase resulted in a new administration’s prompt overhaul and myriad legal
challenges. See Nat’l Ass’n of Mfrs., 138 S. Ct. at 625–27; Executive Order 13778:
Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the
“Waters of the United States” Rule, 82 Fed. Reg. 12,497 (Feb. 28, 2017); Definition
of “Waters of the United States”—Addition of an Applicability Date to 2015 Clean
Water Rule, 83 Fed. Reg. 5,200 (Feb. 6, 2018); Definition of “Waters of the United
States”—Recodification of Pre-Existing Rules, 84 Fed. Reg. 56,626 (Oct. 22, 2019).
On April 21, 2020, the Agencies published a final rule revising the definition
of waters of the United States: The Navigable Waters Protection Rule. 85 Fed. Reg.
22,250. The NWPR defines “waters of the United States” as: (1) “The territorial
seas” and traditional navigable waters; (2) “Tributaries” of those waters; (3) “Lakes
and ponds, and impoundments of jurisdictional waters; and (4) Adjacent wetlands.”
33 C.F.R. § 328.3(a) (2020). Adhering more closely to the plurality opinion in
9
Rapanos, the NWPR “presents a unifying legal theory for federal jurisdiction over
those waters and wetlands that maintain a sufficient surface water connection to
traditional navigable waters or the territorial seas.” 85 Fed. Reg. at 22,252. The
NWPR’s primary means to that end are several definitions that narrow the scope of
what constitutes waters of the United States.1 Although it’s unclear precisely how
many miles of waterways and acres of wetlands the NWPR puts outside the reach of
the Clean Water Act, the rule undisputedly represents a significant reduction in the
scope of jurisdiction the Agencies have asserted in the past.
3.
Having outlined the federal statutory and regulatory background, we turn now
to explaining how that complex administrative scheme interplays with Colorado law
on polluting state waters. Colorado’s “state waters” are defined more broadly than
waters of the United States. Its state waters are “any and all surface and subsurface
waters which are contained in or flow in or through” Colorado, with minor
exceptions not relevant here. Colo. Rev. Stat. § 25-8-103(19). Colorado law
1
Under the NWPR, “adjacent wetlands” include those that “[a]but” or are
“inundated by flooding from” another jurisdictional water “in a typical year,” as well
as wetlands separated from a jurisdictional water “only by a natural berm, bank,
dune, or similar natural feature.” 33 C.F.R. § 328.3(c)(1). Wetlands are not
adjacent, and thus fall outside the definition of waters of the United States, if they are
physically separated from a jurisdictional water by an artificial structure and lack a
direct hydrologic surface connection to such water. Id. The NWPR includes
tributaries that contribute perennial or intermittent surface water flow to a traditional
navigable water during a “typical year.” Id. § 328.3(c)(12). Ephemeral features,
including “ephemeral streams, swales, gullies, rills, and pools” are categorically not
waters of the United States. Id. § 328.3(b)(3). But discharges of pollutants to those
nonjurisdictional waters remain regulated under the Clean Water Act if the
discharges are conveyed to downstream navigable waters. 85 Fed. Reg. at 22,297.
10
prohibits discharges of pollutants into state waters without a permit. Id. § 25-8-
501(1) (“No person shall discharge any pollutant into any state water from a point
source without first having obtained a permit from the division.”); see also id. § 25-
8-103(15) (“‘Pollutant’ means dredged spoil, dirt, slurry, solid waste, incinerator
residue, sewage, sewage sludge, garbage, trash, chemical waste, biological nutrient,
biological material, radioactive material, heat, wrecked or discarded equipment, rock,
sand, or any industrial, municipal, or agricultural waste.”).
Colorado administers a Section 402 permitting program, as delegated by the
EPA, and grants permits to discharge pollutants regulated under 33 U.S.C. § 1342.
But Colorado, like many other states, has not opted to assume Section 404 authority
and operate its own permitting program for dredging and filling waters within the
State. Instead, Colorado relies on the Corps’ Section 404 permits to authorize dredge
and fill activities that impact waters of the United States. Under Colorado law, “each
permit issued pursuant to the federal act [i.e., the Clean Water Act] shall be deemed
to be a temporary permit issued under this article which shall expire upon expiration
of the federal permit.” Colo. Rev. Stat. § 25-8-501(1).
B.
These consolidated appeals unfolded against that backdrop. After publication
of the NWPR, Colorado filed a lawsuit challenging the rule. Its complaint alleged
the Agencies violated the Administrative Procedure Act (APA) because the NWPR
(1) is not in accordance with law, (2) is arbitrary and capricious, and (3) suffers from
procedural flaws. According to Colorado, the Corps also violated the National
11
Environmental Protection Act because it promulgated the NWPR without preparing
an Environmental Impact Statement.
Colorado subsequently filed an amended motion for a preliminary injunction
requesting the district court enjoin the Agencies from implementing the NWPR in the
State. Without holding a hearing, the district court determined Colorado was entitled
to injunctive relief. On June 19, 2020, three days before the NWPR was scheduled to
take effect, the district court stayed the effective date of the rule and enjoined the
Agencies to continue administering Section 404 of the Clean Water Act in Colorado
under the then-current regulations.
The Agencies timely appealed. Additionally, a coalition of fourteen national
trade associations (Business Appellants) filed their own notice of appeal on July 15,
2020, which was the day the district court granted their motion to intervene. Chantell
and Michael Sackett, another pair of intervenor-defendants, filed their notice of
appeal the next day.
II.
We review the district court’s decision to grant preliminary injunctive relief
for abuse of discretion. New Mexico Dep’t of Game & Fish v. United States Dep’t of
the Interior, 854 F.3d 1236, 1245 (10th Cir. 2017). In doing so, “we review the
district court’s factual findings for clear error and its conclusions of law de novo.”
Id. (quoting Fish v. Kobach, 840 F.3d 710, 723 (10th Cir. 2016)). “An abuse of
discretion occurs where a decision is premised on an erroneous conclusion of law or
where there is no rational basis in the evidence for the ruling.” Id.12
Because a preliminary injunction is an “extraordinary remedy never awarded
as of right,” Winter v. Natural Res. Def. Council, 555 U.S. 7, 24 (2008), the movant
must make a “clear and unequivocal” showing it is entitled to such relief, Port City
Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1190 (10th Cir. 2008) (quoting
Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th
Cir. 2004)). To obtain a preliminary injunction, the movant must show (1) it “is
substantially likely to succeed on the merits,” (2) it “will suffer irreparable injury if
the injunction is denied,” (3) its “threatened injury outweighs the injury the opposing
party will suffer under the injunction,” and (4) “the injunction would not be adverse
to the public interest.” New Mexico Dep’t of Game & Fish, 854 F.3d at 1246
(quoting Fish, 840 F.3d at 723). These four factors also determine when a court
should grant a stay of agency action under section 705 of the APA. See Associated
Sec. Corp. v. SEC, 283 F.2d 773, 774–75 (10th Cir. 1960) (applying the four
traditional preliminary injunction factors under 5 U.S.C. § 705’s predecessor statute);
cf. Winkler v. Andrus, 614 F.2d 707, 709 (10th Cir. 1980) (explaining that a § 705
stay is a provisional remedy in the nature of a preliminary injunction); see also Cook
Cty., Illinois v. Wolf, 962 F.3d 208, 221 (7th Cir. 2020) (stating that the preliminary-
injunction standard governs applications for stays under 5 U.S.C. § 705).
Certain types of preliminary injunctions are disfavored and require a movant to
satisfy a heightened standard. New Mexico Dep’t of Game & Fish, 854 F.3d at 1246
n.15. “They are ‘(1) preliminary injunctions that alter the status quo; (2) mandatory
preliminary injunctions; and (3) preliminary injunctions that afford the movant all the
13
relief that it could recover at the conclusion of a full trial on the merits.’” Id.
(quoting Fish, 840 F.3d at 723–24). When seeking a disfavored injunction, the
movant “must make a strong showing” both on the likelihood of success on the
merits and on the balance of the harms. O Centro Espirita Beneficiente Uniao Do
Vegetal v. Ashcroft, 389 F.3d 973, 976 (10th Cir. 2004) (en banc).
On appeal, the Appellants collectively challenge the district court’s
determinations on all four preliminary injunction factors. They first contend the
district court erred in concluding Colorado would likely succeed on the merits by
misconstruing the Supreme Court’s fractured decision in Rapanos to foreclose the
approach taken in the NWPR. Second, for reasons described below, the Agencies
argue the district court abused its discretion when it found Colorado made a
sufficient showing of irreparable injury. Finally, the Agencies and Business
Appellants claim the district court erred in balancing the equities and public
interest—the two remaining preliminary injunction factors—by ignoring the harm the
stay imposes on the regulated community and discounting the jurisdictional clarity
the NWPR provides.
As a threshold matter, we need not determine whether the district court issued
a mandatory preliminary injunction requiring heightened scrutiny. Under either the
normal or heightened standard for preliminary injunctions, Colorado was required
to—but did not—show it will suffer irreparable injury if an injunction is denied. In
other words, even if the normal standard (i.e., the easier burden) for preliminary
injunctions applies, Colorado has failed to meet that standard.
14
III.
With the legal standards laid out, we can turn to the question before us: Did
the district court abuse its discretion by granting Colorado preliminary injunctive
relief? In answering that question, we begin our review with irreparable injury—the
“single most important prerequisite for the issuance of a preliminary injunction,”
which must be met “before the other requirements for the issuance of an injunction
will be considered.” New Mexico Dep’t of Game & Fish, 854 F.3d at 1249 (quoting
Dominion Video Satellite, Inc., 356 F.3d at 1260). And because the district court
abused its discretion when it found Colorado made a sufficient showing of
irreparable harm, we likewise end our review with this dispositive factor.
A.
To merit preliminary injunctive relief, a movant must present a “significant
risk” it “will experience harm that cannot be compensated after the fact by money
damages.” Id. at 1250 (quoting Fish, 840 F.3d at 751–52). That harm “must be both
certain and great,” not “merely serious or substantial.” Prairie Band of Potawatomi
Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001). And a speculative or
theoretical injury will not suffice. RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1210
(10th Cir. 2009). The injury must also be “of such imminence that there is a clear
and present need for equitable relief to prevent irreparable harm.” Schrier v. Univ. of
Co., 427 F.3d 1253, 1267 (10th Cir. 2005) (quoting Heideman v. S. Salt Lake City,
348 F.3d 1182, 1189 (10th Cir. 2003)). If the harm is not “likely to occur before the
district court rules on the merits,” there is no need for preliminary injunctive relief.
15
New Mexico Dep’t of Game & Fish, 854 F.3d at 1250 (quoting Greater Yellowstone
Coal. v. Flowers, 321 F.3d 1250, 1260 (10th Cir. 2003)).
Before the district court, Colorado proffered several reasons why it would be
irreparably harmed by the NWPR’s narrowing of federal jurisdiction. Colorado
claimed the NWPR would create a “permitting gap” where projects involving the
dredging or filling of state waters must halt because it relies exclusively on federal
permits to authorize those activities in compliance with state law. At the same time,
Colorado asserted the removal of federal protections would cause significant
environmental harm to its waters because developers would disregard state law and
illegally move forward with unregulated dredge and fill projects.
The district court determined neither of those harms justified the extraordinary
remedy of preliminary injunctive relief. But it found Colorado established
irreparable injury by showing the NWPR would force it to undertake enforcement
action in place of the federal government to protect the quality of its waterbodies.
Starting with the ground the district court credited, we examine each of Colorado’s
alleged injuries and conclude it has failed to establish a significant risk of irreparable
harm absent preliminary injunctive relief.
1.
According to the Agencies, there are two independently sufficient reasons why
the district court erred when it found irreparable harm. First, they argue the district
court violated the principle of party presentation because Colorado did not assert
irreparable harm stemming from an increased enforcement burden. Second, the
16
Agencies contend the district court abused its discretion because the record does not
establish that the alleged enforcement burden is certain, great, actual, or imminent.
Although the Agencies’ first argument fails, we agree with their second one.
a.
The principle of party presentation is a fundamental premise of our adversarial
system. United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020). That means
“we rely on the parties to frame the issues for decision and assign to courts the role
of neutral arbiter of matters the parties present.” Id. (quoting Greenlaw v. United
States, 554 U.S. 237, 243 (2008)). In other words, “courts do not sit as self-directed
boards of legal inquiry and research.” Nat’l Aeronautics & Space Admin. v. Nelson,
562 U.S. 134, 147 n.10 (2011) (quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C.
Cir. 1983) (Scalia, J.)). Instead, they “wait for cases to come to them, and when
cases arise, courts normally decide only questions presented by the parties.”
Sineneng-Smith, 140 S. Ct. at 1579 (brackets omitted) (quoting United States v.
Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold, J., concurring in denial of
reh’g en banc)).
Although Colorado did little to raise its enforcement-burden argument in its
motion for a preliminary injunction, the district court did not cut this theory of harm
out of whole cloth. Before the district court, Colorado alleged the NWPR “imposes
an immediate compliance and enforcement burden on [the State], which does not
currently have dedicated funding or staffing resources to undertake enforcement
against illegal fill activities and instead has relied on EPA and Corps oversight.”
17
Colorado also argued that “[e]nforcing against illegal fill activity in state waters will
require the State to divert resources currently dedicated to other water pollution
activities, threatening compliance and enforcement across clean water programs.”
For these reasons, the district court did not fall prey to the same temptations
the Supreme Court sternly warned against in Sineneng-Smith, the primary case on
which the Agencies rely. In Sineneng-Smith, the Ninth Circuit identified new
arguments on appeal, invited supplemental briefing on those arguments from amici,
and restructured the oral argument and ultimate decision based on those arguments.
140 S. Ct. at 1580–81. In doing so, the Court unanimously held, the Ninth Circuit
“departed so drastically from the principle of party presentation as to constitute an
abuse of discretion.” Id. at 1578.
As described above, the circumstances here are substantially different from
those in Sineneng-Smith. The district court did not “takeover” the motion for a
preliminary injunction or conjure up a theory of irreparable harm contrary to those
Colorado presented. See id. at 1581. Colorado’s briefing on the enforcement burden
may have been inartful, but it did allege such harm would occur because of the
NWPR. As such, the district court did not exceed the bounds of its discretion in
finding the argument adequately presented.
b.
That conclusion does not end our inquiry, however, because allegations are not
enough to warrant preliminary injunctive relief. The party seeking that extraordinary
remedy faces a high bar—it must make a clear and unequivocal showing it will likely
18
suffer irreparable harm absent preliminary relief. New Mexico Dep’t of Game &
Fish, 854 F.3d at 1250–51. A review of the record evidence shows the district court
abused its discretion when it found Colorado met this burden.
The only specific evidence Colorado presented to support its claim of harm
associated with the increased enforcement burden it would bear under the NWPR is
the declaration of Nicole Rowan, the Clean Water Program Manager for the State’s
Water Quality Control Division. In her declaration, Ms. Rowan asserted that
“Colorado will need to and will take enforcement action against illegal fill activity in
state waters” because of the NWPR’s reduction in Clean Water Act jurisdiction. And
because the Water Quality Control Division lacks dedicated funding to undertake this
enforcement effort, Ms. Rowan explained, Colorado will have to divert resources
from other clean water programs to the detriment of those programs. Ms. Rowan also
noted that the EPA “has historically completed between three and five enforcement
cases in Colorado per year for 404 permit violations.”
Based on that evidence, the district court found “violations of Section 404
[i.e., dredge and fill violations] consistently happen, requiring enforcement action,”
and “[a]t least some of that enforcement burden . . . will now fall in Colorado’s lap.”
But to constitute irreparable harm, an injury must be imminent, certain, actual and
not speculative. New Mexico Dep’t of Game & Fish, 854 F.3d at 1251. When
viewed through that lens, Ms. Rowan’s declaration has notable omissions.
First, imminence. Although Ms. Rowan’s declaration includes a conclusory
statement that the NWPR will “create an immediate compliance and enforcement
19
burden,” it fails to specify when Colorado would need to take enforcement action in
place of the federal government. The declaration only provides that this obligation
“could begin as soon as the [NWPR] goes into effect” and that “Colorado will need
to assume some of this [enforcement] burden in the future.” These vague assertions
are insufficient to support a finding, which the district court did not explicitly make,
that Colorado would likely suffer an increased enforcement burden before a decision
on the merits. And if the harm is not likely to occur before the district court rules on
the merits, there is no need for preliminary injunctive relief. New Mexico Dep’t of
Game & Fish, 854 F.3d at 1250.
Second, actuality and certainty. Ms. Rowan’s declaration indicates the EPA
has historically undertaken three to five enforcement actions in Colorado per year
because of dredge or fill violations. That’s it. The declaration doesn’t describe when
these unidentified enforcement actions occurred, what they entailed, or where the
violations occurred. Nor does it say those past enforcement actions involved waters
covered under the prior regulation but not under the NWPR, which the district court
dubbed “disputed waters.” In other words, Ms. Rowan’s declaration fails to tie any
alleged reduction in federal enforcement—and thus any potential increase in
Colorado’s enforcement burden—to the jurisdictional changes under the NWPR.
No other evidence before the district court fills in these gaps. Instead, the
district court merely assumed that “[a]t least some” of the past EPA enforcement
actions referenced in Ms. Rowan’s declaration involved the dredging or filling of
disputed waters. Going one step further, the court determined Colorado would need
20
to pursue a similar number of enforcement actions in place of the federal government
to protect the quality of its waterways. By this point, the district court’s conclusion
had crossed over from reasonable inference to pure speculation.
At bottom, the evidence Colorado presented is insufficient to support the
district court’s finding of irreparable harm. The record evidence raises, at most, the
mere possibility of the potential for a small increase in Colorado’s enforcement
burden at some point in the future. That is insufficient because “[i]ssuing a
preliminary injunction based only on a possibility of irreparable harm is inconsistent
with our characterization of injunctive relief as an extraordinary remedy that may
only be awarded upon a clear showing that the plaintiff is entitled to such relief.”
Winter, 555 U.S. at 22. Neither Ms. Rowan’s declaration nor any other affidavit
before the district court provides evidence that the NWPR would likely cause a
reduction in federal enforcement and, consequently, an increase in Colorado’s
enforcement burden before a decision on the merits.
For these reasons, the record did not provide a sufficient basis for finding
Colorado would suffer certain, actual, and imminent harm stemming from the alleged
enforcement burden it would bear in place of the federal government under the
NWPR. The district court therefore abused its discretion when it found irreparable
harm on that basis.
2.
As an alternative ground for upholding the district court’s order, Colorado
attempts to resuscitate its permitting-gap argument. According to Colorado,
21
discharges of dredged or fill material into its waters are flatly prohibited under state
law in the absence of federal Section 404 permits. Because it has no legal
mechanism to authorize the filling of disputed waters, Colorado maintains, the
NWPR’s narrowing of waterbodies subject to Clean Water Act jurisdiction will result
in the delay or cancellation of development and infrastructure projects. As a result,
Colorado argues the permitting gap will cause it to suffer irreparable economic harm
because it must either spend unrecoverable funds setting up its own Section 404
permitting program or forgo certain development projects.
Colorado has failed to show the district court erred when it rejected this claim
of irreparable harm. For starters, the injury is not legally cognizable because the
economic harm stemming from Colorado’s inability to authorize the discharge of
dredged or fill material into disputed waters is not fairly traceable to the Agencies’
alleged unlawful conduct. It is self-inflicted, resulting from Colorado’s legislative
decision to effectively prohibit dredge and fill activities in state waters not covered
by the Clean Water Act. Pennsylvania v. New Jersey, 426 U.S. 660, 664 (1976) (per
curiam) (“The injuries to the plaintiffs’ fiscs were self-inflicted, resulting from
decisions by their respective state legislatures. . . . No State can be heard to complain
about damage inflicted by its own hand.”); Petro–Chem Processing, Inc. v. EPA, 866
F.2d 433, 438 (D.C. Cir. 1989) (Ginsburg, R.B., J.) (explaining that self-inflicted
22
injuries cannot satisfy the requirements for Article III standing because they break
the causal chain linking the defendant’s conduct to the asserted injury).2
But even if Colorado’s permitting gap was a cognizable (as opposed to self-
inflicted) injury, it would still fall short of warranting preliminary injunctive relief.
The district court found Colorado failed to present any evidence of imminent harm
stemming from its inability to authorize the discharge of dredged or fill materials into
disputed waters. On appeal, Colorado has likewise not pointed to any particular
evidence of a dredge or fill operation that is ready to start but will need a federal
permit to move forward before the case is decided on the merits.
Colorado also concedes it will not incur costs by creating and administering a
permitting program for the discharge of dredged or fill material anytime soon
because legislative action is needed to provide this new regulatory authority. The
Colorado Water Quality Control Division supported legislation to address the
permitting gap, but the measure failed during the most recent legislative session.
2
We recognize Pennsylvania v. New Jersey involved a dispute between two
states and the invocation of the Supreme Court’s original jurisdiction. 426 U.S. at662–63. But the self-inflicted injury doctrine is not limited to the original
jurisdiction context. See, e.g., Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416
(2013) (applying Pennsylvania outside the original jurisdiction context); Nova Health
Sys. v. Gandy, 416 F.3d 1149, 1156 n.8 (10th Cir. 2005) (quoting Pennsylvania when
recognizing the self-inflicted doctrine may apply); Zimmerman v. City of Austin, 881
F.3d 378, 389 (5th Cir. 2018) (“[S]tanding cannot be conferred by a self-inflicted
injury.”); Parvati Corp. v. City of Oak Forest, 630 F.3d 512, 517–18 (7th Cir. 2010)
(concluding the plaintiff lacked standing because the asserted injury was self-
inflicted). In any event, Colorado does not mention Pennsylvania in its brief—let
alone argue its holding is inapplicable here.
23
Thus, the district court did not abuse its discretion when it found Colorado failed to
show the permitting gap would likely cause it to suffer imminent, irreparable harm.
3.
We turn next to Colorado’s other alternative theory of irreparable injury.
Colorado argues the NWPR’s narrowing of federal jurisdiction, which will allegedly
leave half of its state waters unprotected, would cause it to suffer significant
environmental harm. Specifically, Colorado contends the loss of federal oversight
and Section 404 permitting requirements is likely to result in illegal dredging or
filling of disputed waters, which in turn would harm its wetlands, wildlife, and water
resources. Although the district court recognized Colorado has an interest in
protecting its waters, it found that “Colorado’s alleged chain of causation between
the [NWPR] and the damage to state waters is pure speculation.” We agree.
“Environmental injury, by its nature, can seldom be adequately remedied by
money damages and is often permanent or at least of long duration, i.e., irreparable.”
Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987); see also Catron Cty.
Bd. of Comm’rs v. U.S. Fish & Wildlife Serv., 75 F.3d 1429, 1440 (10th Cir. 1996).
But the problem with Colorado’s argument isn’t the type of harm alleged. It’s
causation.
The principle of causation for Article III standing requires a plaintiff’s injury
to be “fairly traceable to the challenged action of the defendant, and not the result of
the independent action of some third party not before the court.” Bronson v.
Swensen, 500 F.3d 1099, 1109 (10th Cir. 2007) (quoting Nova Health Sys., 416 F.3d
24at 1156). When “a plaintiff’s asserted injury arises from the government’s allegedly
unlawful regulation (or lack of regulation) of someone else,” standing “is not
precluded, but it is ordinarily substantially more difficult to establish.” Lujan v.
Defs. of Wildlife, 504 U.S. 555, 562 (1992) (quotation marks and citations omitted).
In that circumstance, the plaintiff bears the burden of “adducing facts showing that
those third-party choices have been or will be made in such manner as to produce
causation and permit redressability of injury.” Ctr. for Biological Diversity v. U.S.
Dep’t of Interior, 563 F.3d 466, 478 (D.C. Cir. 2009) (brackets omitted) (quoting
Lujan, 504 U.S. at 562).
Here, Colorado relies on too tenuous a causal link between its allegations of
environmental harm and the jurisdictional changes made by the NWPR. Colorado
alleges significant environmental harm would likely occur if federal protections are
withdrawn from disputed waters because developers will likely disregard state law
and illegally fill those waters. Yet, as the district court found, Colorado has not
adduced specific facts suggesting a “previously-permitted developer (one who has so
far sought to obey the law)” would likely “conclude that the narrowing of one law
means there must be no more laws to comply with.” Colorado has only presented
evidence that illegal fill has happened in the State under the pre-NWPR regulatory
framework—not that the NWPR would make illegal fill more likely.
Colorado’s alleged causal chain fails to adequately establish causation because
it relies on speculation that independent developers not present in this case will
illegally dredge or fill disputed waters. See R.J. Reynolds Tobacco Co. v. U.S. Food
25
& Drug Admin., 810 F.3d 827, 831 (D.C. Cir. 2016) (rejecting “assertions of
imminent injury where the prospective injury depends on future illegal activity” by
third parties); see also Lujan, 504 U.S. at 562 (explaining the reluctance to find
standing when the claimed injury “depends on the unfettered choices made by
independent actors not before the courts.” (quoting ASARCO Inc. v. Kadish, 490 U.S.
605, 615 (1989) (opinion of Kennedy, J.))). Although some entities may believe
Colorado lacks authority under state law to enforce against unpermitted dredging and
filling, considerable reason exists to believe developers will not test the strength of
this argument by risking an enforcement action against them. As Colorado has made
clear, it “must”—and it will—“seek to enforce its current statutory scheme,” which,
in its view, “does not allow for dredge and fill activities in state waters that are no
longer covered by the federal Act.”
On this record, it is pure speculation whether the NWPR’s reduction in federal
jurisdiction would result in an increase, rather than a decrease or no change, in the
number of dredge and fill violations committed in Colorado. When predictions are so
uncertain, an injury is not cognizable—let alone sufficient to warrant the
extraordinary remedy of preliminary injunctive relief. Because Colorado has failed
to show the NWPR poses an actual and imminent risk of environmental harm within
the State, we decline its invitation to affirm the district court’s order based on this
alternative claim of irreparable injury.
26
B.
When the failure to satisfy one factor is dispositive, a court need not consider
the other factors. New Mexico Dep’t of Game & Fish, 854 F.3d at 1255. As
discussed above, the lack of irreparable injury is dispositive; a movant must show a
significant risk of irreparable injury to get preliminary injunctive relief. Id. Because
the district court abused its discretion when it found Colorado made that showing, we
need not address the remaining preliminary injunction factors. See id.
IV.
In sum, the district court abused its discretion when it granted Colorado’s
request for preliminary injunctive relief. So we REVERSE and VACATE the district
court’s order staying the effective date of the NWPR and enjoining the Agencies to
continue administering Section 404 of the Clean Water Act in Colorado under the
pre-NWPR regime. We also REMAND to the district court for further proceedings
consistent with this opinion.
27