DocketNumber: No. 2-18-cv-330-DCN
Citation Numbers: 318 F. Supp. 3d 959
Judges: Norton
Filed Date: 8/16/2018
Status: Precedential
Modified Date: 7/25/2022
This matter is before the court on a motion for summary judgment by a coalition of conservation groups consisting of the South Carolina Coastal Conservation League, Charleston Waterkeeper, American Rivers, Chattahoochee Riverkeeper, Clean Water Action, Defenders of Wildlife, Friends of the Rappahannock, North Carolina Coastal Federation, and the North Carolina Wildlife Federation (collectively, "environmental plaintiffs"), ECF No. 60, as well as a cross-motion for summary *961judgment by defendants Scott Pruitt ("Pruitt"), the United States Environmental Protection Agency ("the EPA"), Ryan Fisher ("Fisher"), and the United States Army Corps of Engineers ("the Army Corps") (collectively "the government"), ECF No. 62. Intervenor-defendants American Farm Bureau Federation, American Forest & Paper Association, American Petroleum Institute, American Road and Transportation Builders Association, Leading Builders of America, Matagorda Farm Bureau, National Alliance of Forest Owners, National Association of Home Builders, National Association of Manufacturers, 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, Texas Farm Bureau, and U.S. Poultry & Egg Association's (collectively, "the business groups") have filed a response in support of the government's cross-motion. ECF No. 63. For the reasons set forth below, the court grants environmental plaintiffs' motion for summary judgment, denies the government's cross-motion for summary judgment, and enjoins the Suspension Rule nationwide.
I. BACKGROUND
This case arises out of the promulgation of a rule ("the Suspension Rule") that suspends the 2015 Clean Water Rule ("the WOTUS rule") for two years. The Clean Water Act ("the Act") prohibits discharge of pollutants from a point source into "navigable waters" without a permit.
On August 28, 2015, the EPA and the Army Corps enacted the WOTUS rule to clarify what types of waters constitute a "waters of the United States" and are thus covered by the Act. The WOTUS rule replaced the 1980s regulation and includes seasonal streams, wetlands, and tributaries as a "water of the United States." Soon after its enactment, the WOTUS rule became embroiled in litigation, with cases being brought in district courts across the country, including the Southern District of Texas ("the Texas litigation"). The government petitioned the Judicial Panel on Multi-District Litigation to consolidate these district court actions, which the Panel denied in October 2015.
All of the challenges to the district court decisions regarding the WOTUS rule were consolidated in the Sixth Circuit. In February 2016, the Sixth Circuit ruled that it had original jurisdiction over challenges to the WOTUS rule and issued a nationwide stay of the rule. At the time that the Sixth Circuit issued its nationwide stay of the WOTUS rule, the District of North Dakota had issued a preliminary injunction against the WOTUS rule effective in thirteen states. As a result of this ruling by the Sixth Circuit, the pending district court cases were either stayed or administratively closed. On January 22, 2018, the United States Supreme Court ruled that the circuit *962courts did not have original jurisdiction to review the WOTUS rule, and that challenges must continue to be filed in the district courts. The Sixth Circuit then vacated the nationwide stay of the WOTUS rule. The injunction against the WOTUS rule issued by the District of North Dakota stayed in place.
On February 28, 2017, President Donald Trump issued Executive Order 13778 entitled "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule," which directed Pruitt, the Administrator of the EPA, and Fischer, the Assistant Secretary of the Army for Civil Works, to "review the... [WOTUS rule]... for consistency with... [administration] policy... and publish for notice and comment a proposed rule rescinding or revising the rule, as appropriate and consistent with [the] law." On February 6, 2018, the Suspension Rule was published in the Federal Register. The effect of the Suspension Rule to delay the WOTUS rule until 2020, and in the interim period the controlling interpretation of "waters of the United States" was that prescribed by the 1980s regulation which had been in place prior to the WOTUS rule.
On the same day that the Suspension Rule went into effect, environmental plaintiffs filed suit against the manner in which the Suspension Rule was enacted. Environmental plaintiffs allege the following claims: (1) in promulgating the Suspension Rule, the EPA and Army Corps violated the Administrative Procedure Act ("APA") by taking action with inadequate public notice and comment as prescribed by the APA; (2) the government's failure to consider the substantive implications of suspending the WOTUS rule in enacting the Suspension Rule was arbitrary and capricious under the APA, which directs federal agencies to "examine the relevant data and articulate... satisfactory explanation[s] for... [their] action[s]"; and (3) the government's failure after enacting the Suspension Rule to restore the 1980s regulation to the Federal Register violates the APA, which requires federal agencies to publish the language of any substantive regulation that they intend to have legal effect. Environmental plaintiffs ask the court to declare that the EPA and the Army Corps acted arbitrarily and unlawfully in promulgating the Suspension Rule, and to vacate the Suspension Rule.
This motion has been fully briefed and is now ripe for the court's review.
II. STANDARD
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). " Rule 56(c) of the Federal Rules of Civil Procedure requires that the district court enter judgment against a party who, 'after adequate time for discovery... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.' " Stone v. Liberty Mut. Ins. Co.,
*963Although the court must draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence. See Anderson,
III. DISCUSSION
Environmental plaintiffs make three main arguments that the Suspension Rule violates the APA: (1) that the agencies violated the APA by refusing to solicit public comment on the merits of suspending the WOTUS rule and replacing it with previous regulations and guidance; (2) that the agencies violated the APA in refusing to consider the substantive implications of suspending the WOTUS rule; (3) that the agencies violated the APA in failing to publish the regulatory text that they intend to implement. The court addresses the first two grounds as one and agrees with environmental plaintiffs that the agencies' refusal to consider or receive public comments on the substance of the WOTUS Rule or the 1980s regulation did not provide a "meaningful opportunity for comment" as set forth in N. Carolina Growers' Ass'n, Inc. v. United Farm Workers,
A. Refusal to Solicit and Consider Public Comment on Merits of WOTUS Rule or 1980s regulation
Environmental plaintiffs contend that in promulgating the Suspension Rule, the government violated the APA by refusing to solicit or consider any substantive comments on the change of regulatory definition to "waters of the United States" from the WOTUS Rule to the 1980s regulation. The court agrees.
Under
In N. Carolina Growers' Ass'n, Inc., the Fourth Circuit made clear that an agency's suspension of a set of regulations and reinstatement of another set of regulations qualifies as "rule making" under the APA, triggering notice and comment requirements. Having established that the suspension of a rule requires the same substantive requirements of notice and comment rule making as the promulgation of that rule, the court now turns to whether the notice and comment rule making that occurred here was sufficient under § 553 and whether it allowed for "meaningful" comment. The court finds that it was not and did not.
In N. Carolina Growers' Ass'n, the Fourth Circuit analyzed an almost factually indistinguishable rule making attempt. The Secretary of Labor proposed in March 2009 to suspend the current 2008 regulations governing the admission of foreign workers for temporary employment in the agriculture sector and temporarily reinstate a 1987 regulation generally seen as more favorable to U.S. agricultural workers. N. Carolina Growers' Ass'n, Inc.,
The court confronts an eerily similar set of facts here. On November 16, 2017, the agencies published a proposed rule to "review and revise" the definition of "waters of the United States." ECF No. 1, Ex. 1 Proposed Suspension Rule. The proposed rule explains that the Suspension Rule amends the effective date of the WOTUS rule to two years from the date of final action of the Suspension Rule. Id. at 3. In *965relevant part, the proposed rule states that the agencies "solicit comment as to whether it is desirable and appropriate to amend the effective date of the [WOTUS rule]," and that the agencies are "proposing to establish an effective date of two years after a final rule and seek comment on whether the time period should be shorter or longer, and whether delaying the effective date contributes to regulatory certainty." Id. at 12. It goes on to state that the Suspension Rule "does not undertake any substantive reconsideration of the [1980s regulation]" and so the agencies are not "soliciting on the specific content of [the 1980s regulation]" or the "scope of the definition of "waters of the United States" that the agencies should ultimately adopt." Id. at 12-13. The proposed rule goes on to acknowledge that the request for comment is on "such a narrow topic," and that a "short comment period is reasonable." Id. at 10. In a "memorandum for the record," the agencies explain the rule making process for the Suspension Rule. In that memorandum, the agencies explain that the Suspension Rule is considered "step 1" of the process to rescind the WOTUS rule and to recodify the 1980s regulation. ECF No. 60, Ex. 2, EPA Memorandum for the Record on Suspension Rule Rule making Process. The Suspension Rule would, according to this memorandum, "maintain the legal status quo and thereby provide clarity and certainty for regulated entities, the states and tribes, and the public." Id. This memorandum further explains that it will engage in "step 2" of rule making by developing a final rule in "no more than two years." Id.
As the Fourth Circuit made clear in N.C. Growers' Association, when an agency refuses to consider comments on a rule's substance and merits in issuing a suspension rule that reinstates an earlier regulation, the content restriction is "so severe in scope" that "by preventing any discussion of the 'substance or merits' of either set of regulations" the opportunity for comment "cannot be said to have been a 'a meaningful opportunity." N.C. Growers' Ass'n,
*966Clean Air Council v. Pruitt,862 F.3d 1 , 9 (D.C. Cir. 2017) (vacating the EPA's attempt to temporarily stay a Clean Air Act regulation without "comply[ing] with the ... APA ..., including its requirements for notice and comment"); Open Communities All. v. Carson,286 F.Supp.3d 148 , 152 (D.D.C. Dec. 23, 2017) (enjoining the defendant agency's attempt, "without notice and comment or particularized evidentiary findings, ... [to] delay[ ] almost entirely by two years implementation of a rule" adopted by the previous administration); Pennsylvania v. Trump,281 F.Supp.3d 553 , *1[560-61], *9-10[570-72] (E.D. Pa. Dec. 15, 2017) (enjoining two new "Interim Final Rules" based on the defendant agencies' attempt to "bypass notice and comment rule making"); Nat'l Venture Capital Ass'n v. Duke,291 F.Supp.3d 5 , 8 (D.D.C. Dec. 1, 2017) (vacating the defendant agency's "decision to delay the implementation of an Obama-era immigration rule ... without providing notice or soliciting comment from the public"); California v. U.S. Bureau of Land Mgmt.,277 F.Supp.3d 1106 , 1111, 1120 (N.D. Cal. Oct. 4, 2017) (holding that the defendant agency's attempt to postpone a regulation's compliance dates "after the rule's effective date had already passed ... violated the APA's notice and comment requirements by effectively repealing the [r]ule without engaging in the process for obtaining comment from the public"); Becerra v. U.S. Dep't of the Interior,276 F.Supp.3d 953 , 966 (N.D. Cal. Aug. 30, 2017) (holding that the defendant agency violated the APA in "fail[ing] to give the public an opportunity to weigh in with comments" before attempting to postpone a rule that had already taken effect).
ECF No. 60 at 2-3. The government argues that the Suspension Rule is distinguishable from these cases because in those cases the agency undertook a "delay, suspen [sion], or otherwise [change]" in regulations during reconsideration without engaging in notice and comment rule making, whereas here the agencies conducted notice and comment rule making. ECF No. 62 at 23. But it is the agencies' decision to promulgate the Suspension Rule without allowing the public to comment on the substance of either the WOTUS Rule or the 1980s regulation that renders the notice-and-comment rule making infirm under the APA. An illusory opportunity to comment is no opportunity at all.
In determining whether the opportunity for notice and comment was "meaningful," the court also finds persuasive the differences in rule making between the WOTUS rule and Suspension Rule. In North Carolina Growers' Ass'n, Inc.,
The government contends that the Suspension Rule is just that-a suspension of the WOTUS rule. It is not, according to the government, a repeal or rescission of the WOTUS rule. The government's stated rationale for the Suspension Rule is also what the government attempts to use to distinguish this case from the Department of Labor regulation that was found to violate the APA in N.C. Growers' Association -that the WOTUS rule has been ensnared in litigation and its suspension would reduce "uncertainly and confusion" in the regulated community from that litigation. ECF No. 19, Ex. 1 Suspension Rule. It is not uncommon for administrative rules to face judicial challenges by regulated entities. The court cases challenging an administrative rule does not mean that agencies may disregard the procedural requirements of the APA. The government has pointed to no language in N.C. Growers' Association to indicate as much. The court finds that under N.C. Growers' Association, the content restriction on the scope of public comments that the agencies levied during the rule making process for the Suspension Rule "cannot be said to have been 'a meaningful opportunity.' " N. Carolina Growers' Ass'n, Inc.,
"An agency's view... may change.... But an agency changing its course must supply a reasoned analysis." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
*968B. Geographic Scope of Injunction
Having determined that the agencies violated the APA in promulgating the Suspension Rule, the court must now determine the scope of the injunction. Environmental plaintiffs ask for a nationwide injunction, while the government and business groups urge the court to geographically limit the scope of the injunction. The court refuses to do so.
It is well-established that "district courts have broad discretion when fashioning injunctive relief." Ostergren v. Cuccinelli,
The government argues that if the court chooses to enjoin the Suspension Rule, it should not issue a nationwide injunction. But the court sees no principled reason why the Suspension Rule should be enjoined in some states but not others. First, environmental plaintiffs are located throughout the United States. In Richmond Tenants Org., Inc. v. Kemp,
Second, environmental plaintiffs have brought a facial challenge to agency action under the APA. In Harmon v. Thornburgh,
Finally, and perhaps most saliently, a nationwide injunction is "necessary to provide complete relief." Madsen v. Women's Health Ctr., Inc.,
IV. CONCLUSION
As administrations change, so do regulatory priorities. But the requirements of the APA remain the same. The court finds that the government failed to comply with these requirements in implementing the Suspension Rule. Accordingly, the court GRANTS summary judgment for the environmental plaintiffs, DENIES the government's cross-motion for summary judgment, *970and ENJOINS the Suspension Rule nationwide.
AND IT IS SO ORDERED .
All of the parties discuss in varying degrees the merits of the WOTUS rule. Environmental plaintiffs argue that the WOTUS rule better effectuates the purpose of the Act because "peer-reviewed science and practical experience" are clear that upstream waters such as the wetlands protected by the WOTUS rule "significantly affect the chemical, physical, and biological integrity of downstream waters." ECF No. 60 at 27, citing WOTUS Rule,
To this litany of cases, the court adds two more from the last several months-Nat. Res. Def. Council v. Nat'l Highway Traffic Safety Admin.,
Now, environmental plaintiffs made an additional argument that has less credence. Specifically, that the Suspension Rule is inconsistent with the purpose of the Act and so runs contrary to the requirement that an agency "show that... [a] new policy is permissible under the statute" under which the rule is promulgated. ECF No. 60 at 21, quoting F.C.C. v. Fox Television Stations, Inc.,
Certainly, nationwide injunctions have the potential for abuse. As the Seventh Circuit recently observed in City of Chicago v. Sessions,
[U]nder the Obama administration, such injunctions stymied many of the President's policies, with five nationwide injunctions issued by Texas district courts in just over a year[.] At that time, then-Senator and now-Attorney General Sessions characterized the upholding of one such nationwide preliminary injunction as "a victory for the American people and for the rule of law." Press Release, Sen. Jeff Sessions III, June 23, 2016. Now, many who advocated for broad injunctions in those Obamaera cases are opposing them.
This court agrees that nationwide injunctions should be utilized "only in rare circumstances."