Latest on the Clean Water Rule Litigation

What’s the latest on the Clean Water Rule litigation?  Jon Devine of NRDC is helping us keep it all straight. Read his update below.
As a starting point, there is a lack of agreement amongst the parties and some uncertainty about whether challenges to the rule are supposed to be filed in the first level of the federal courts (“district courts”) or the intermediate level (“circuit courts”).  Given that, virtually all of the parties challenging the rule have filed both in the circuits and the district courts.  The result is that there have been 16 circuit court challenges filed in 8 courts, and 15 district court challenges filed in 13 courts.

So, what has happened?

All of the challenges filed in circuit courts were consolidated  — as federal rules require — in the U.S. Court of Appeals for the 6th Circuit (which was selected by lottery).  The district court cases followed varied paths.  Some were put on hold while the government asked a special federal body — the Panel on Multidistrict Litigation — to transfer and consolidate the cases in a single location.  Others were dismissed or requests for stays of the rule were rejected on the ground that the 6th Circuit is the only court with authority to hear the cases.  One — in the District of North Dakota — granted a stay of the rule until the case can be fully heard; that stay applied to the 13 states that sued in that court.

Since the North Dakota stay, a few major things happened.  First, the states that filed in the Southern District of Georgia have appealed that court’s decision that it lacks authority to decide the case; that case is pending in the U.S. Court of Appeals for the Eleventh Circuit.  Second, after challengers sought a stay from the Sixth Circuit and also asked that court to dismiss the cases because they believe the challenges belong in the district courts, the Sixth Circuit ordered briefing on both a stay and its authority to hear the case, in that order.  Unfortunately, the 6th Circuit decided a week and a half ago that a stay is appropriate, at least until it resolves the question of which court should hear the cases.  Third, the Multidistrict Litigation Panel rejected the government’s request to transfer and consolidate all the district court cases, leaving those to proceed forward.

What comes next?

This is very difficult to predict.  Some parties may challenge the 6th Circuit’s stay as inappropriate, especially prior to ruling on its authority to hear the case in the first instance.  The Sixth Circuit will have a hearing about the authority question on December 8th, after which it could decide it has the authority to hear the case and — barring some other challenge — will presumably keep the stay of the rule in place until it ultimately decides the actual legal issues in the case.  If the 6th Cir. decides it’s the right place, I expect at least some of the district courts will either indefinitely postpone their cases or dismiss them, but some probably won’t.  The court in North Dakota, for instance, has already determined that the district courts should have these cases, so I expect that case will continue on.  Also, the Eleventh Circuit could decide that the Georgia case was wrongly decided and that the district courts have authority to hear the case, in which case at least that Georgia litigation will continue.  If the Sixth and Eleventh Circuits disagree about which level of the courts is the right one for these challenges, I would not be surprised if the government or some challengers, or both, ask the Supreme Court to resolve the question.

At least while the stay is in place, the agencies can’t enforce the rule, so jurisdictional determinations and enforcement cases for the time being will need to be based on the pre-rule guidelines from the Bush administration.  However, I can’t think of any reason that the agencies couldn’t continue to prepare for the rule to be enforced if/when it is upheld in court.

What’s the big picture?

In light of all of this, the major takeaway — in my opinion — is that we’re a long way from getting to final resolution of the legal issues in the cases.  For now, we’ve had a lot of preliminary wranglings, but only a couple of them have considered the core legal issues, and even those were tangential and based on a less-than-complete record and less-than-robust briefing.  This is a long way from lost.  When the smoke clears, I remain confident that the rule’s central provisions — those based on the enormous scientific record and grounded in the Supreme Court’s decisions — will be upheld.

Futhermore, EPA officials have also expressed their confidence in the science and legal foundation of the rule, and are working with the Corps in the interim to make sure the connectivity science and the transparency/jd/NJD posting improvements agreed to will move forward.  This means we should be able to to better document jds/njds under the pre-rule scenario and hopefully hold the Corps and EPA more accountable for better determinations.

Celebrate the Anniversary of the Clean Water Act

The Clean Water Act’s Anniversary is on October 18th, and we’re thinking about how it has made a difference for our waterways.

This bedrock environmental law was enacted forty-three years ago and ever since then has been one of our most important tools for protecting our waterways. Since 1972,  our waterways have become much cleaner, but there’s still work to be done!

Below are some tools that you can use for the Anniversary of the Clean Water Act.

Click here for template letters to the editor from Environment America, focused on the Clean Water Rule.

Click here to read the report by Environment America Research and Policy Center to learn more about how the Clean Water Act has made a difference for waterways around the country.

Clean Water Rule Stayed Nationwide

On October 9th 2015, the Sixth Circuit put a temporary hold on the Obama administration’s recently-enacted Clean Water Rule, removing protections under the Clean Water Act for thousands of waterways and wetlands across the country.

We’ll keep you updated as we hear more about the implications of this stay, and what next steps advocates for the Rule are taking.  Here you can find the statements from Environment America, NRDC, and NWF.

September ended with a flowing river of clean water activity

September ended with a flowing river of clean water activity.  First of all, Congress has agreed to a “clean” continuing resolution (CR) to keep the government running past the budget deadline of October 1st.  That means polluters failed to insert a dirty water rider into this first phase of the budget battle.  The real budget fight now commences, with negotiations beyond the CR going into September.

But not all news was bright on Capitol Hill.  Also on Wednesday, Senator Inhofe (OK) seized on a set of internal Army Corps of Engineers memos to convene yet another hearing to attack the Clean Water Rule.  Grilling Corps’ General Jo Ellen Darcy, Inhofe was incredulous that the Corps (which administers the wetlands part of the Clean Water Act) would approve the Rule when her own staff had raised serious questions about it.  Lost in Inhofe’s umbrage is the fact that at least some of the concerns raised in the Corps’ memos argued that the rule should be even stronger.

Third, EPA announced yet another clean water measure – standards to curb the impact of power plants on our rivers and streams. According to the EPA, The rule sets the first federal limits on the levels of toxic metals in wastewater that can be discharged from power plants, and they project it to reduce the amount of toxic metals, nutrients, and other pollutants that steam electric power plants are allowed to discharge by 1.4 billion pounds and reduce water withdrawal by 57 billion gallons annually.

Finally, the EPA is expected to propose a stormwater rule this coming December. We’ll keep you in the loop as we hear more.  Please let me know if this is an issue you are especially interested in staying engaged on.

Online Organizing Webinar

Clean Water Network recently hosted an Online Organizing Webinar to help our members enhance their ability to engage their members online via social media, email blasts, online petitions, and other tech savvy tools. Check it out!

        

 

Dirty Water Riders, New Standards for Power Plants, and the Clean Water Rule

September ended with a flowing river of clean water activity. First of all, Congress has agreed to a “clean” continuing resolution (CR) to keep the government running past the budget deadline of October 1st. That means polluters failed to insert a dirty water rider into this first phase of the budget battle. The real budget fight now commences, with negotiations beyond the CR going into September.

But not all news was bright on Capitol Hill. Also on Wednesday, Senator Inhofe (OK) seized on a set of internal Army Corps of Engineers memos to convene yet another hearing to attack the Clean Water Rule. Grilling Corps’ General Jo Ellen Darcy, Inhofe was incredulous that the Corps (which administers the wetlands part of the Clean Water Act) would approve the Rule when her own staff had raised serious questions about it. Lost in Inhofe’s umbrage is the fact that at least some of the concerns raised in the Corps’ memos argued that the rule should be even stronger.

Third, EPA announced yet another clean water measure – standards to curb the impact of power plants on our rivers and streams. According to the EPA, The rule sets the first federal limits on the levels of toxic metals in wastewater that can be discharged from power plants, and they project it to reduce the amount of toxic metals, nutrients, and other pollutants that steam electric power plants are allowed to discharge by 1.4 billion pounds and reduce water withdrawal by 57 billion gallons annually.

Finally, the EPA is expected to propose a stormwater rule this coming December. We’ll keep you in the loop as we hear more.

Interior Approps Riders

Today, the House of Representatives is scheduled to vote on an Interior-EPA funding bill that contains a set of bad riders, including provisions that would halt the EPA’s Clean Water Rule.

Last week, Clean Water Network partnered with our friends at River Network to host a webinar to explain the content of the rule and the next steps after its finalization. If you missed the webinar but have questions about what’s in the rule, and what’s happening, let me know.

Here are some more materials from the EPA and other organizations that you can take advantage of.

-Short summary of the rule from EPA

Fact sheet on Ag

-Blog from Jon Devine of NRDC

-Blog from Ken Kopocis of EPA

-Sample LTE from Environment America

-Sample Action Alert

Survey

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Please click the link below and complete this survey to help us learn more about your organization and the challenges you face in your watershed.

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Rule Next Steps Webinar

Dear Clean Water Network Members,

We hope that you can join us for:

CLEAN WATER RULE WEBINAR – WHAT DOES THE FINAL RULE DO AND NEXT STEPS

Following the issuance of the final Clean Water Rule… what does it actually do and how did it change from the draft? What are we anticipating from Congress? What about implementation?

U.S. EPA and the Army Corps of Engineers finalized the Clean Water Rule on May 27th. This rule clarifies which waters are protected under the Clean Water Act following Supreme Court decisions in 2001 and 2006 that confused implementation of the Act and put many wetlands and streams at risk. This rulemaking will fundamentally influence everyone’s work to protect and restore our streams, rivers, lakes and wetlands.

At 297 pages, the final rule covers a lot of ground, so please join River Network and Clean Water Network for a one-hour webinar to hear from conservation community experts on the details of what was included in the final rule, and what we expect for the next steps on defending the rule from additional attacks.

Date: Wednesday, July 1st
Time: 12:30 EST/9:30 PST

Agenda:

Content and overview of the rule – Jon Devine, Senior Attorney, NRDC
Next steps for defending the rule – John Rumpler, Senior Attorney, Environment America
Q&A

Please RSVP by June 29th here http://www.rivernetwork.org/forms/river-network-webinar-RSVP and webinar log in information will be sent to you.

Clean Water Rule resources/information:

EPA info – http://www2.epa.gov/cleanwaterrule
Diane Rehm Show on the Clean Water Rule
NRDC fact sheet on the Clean Water Rule