CINCINNATI (CN) — A 2015 Environmental Protection Agency rule that expanded the definition of the waters of the United States was debated Thursday at the Sixth Circuit, as Ohio and Tennessee argued the since-repealed rule was unconstitutional and could still be put back into effect.
Eighteen states filed three separate suits in June 2015 after the Obama administration’s EPA expanded the definition of tributaries so that “dry ponds, ephemeral streams, intermittent channels, and even ditches” would be regulated by the federal government, according to the states.
The rule was stayed by the Sixth Circuit later the same year, although that stay was eventually lifted after the Trump administration worked toward its eventual repeal, which occurred in September 2019.
The 2015 rule — referred to as the Waters of the United States rule — was ultimately replaced in April by the so-called Navigable Waters Protection Rule, which says smaller bodies of water are “nonjurisdictional.”
U.S. District Judge Edmund Sargus Jr., an appointee of Bill Clinton, denied Tennessee and Ohio’s renewed motion for a preliminary injunction in March 2019, finding the states “failed to draw the court’s attention to any particularized harm that they will suffer while this matter remains pending.”
“While any violation of the Constitution is undoubtedly serious, the alleged offending action of the federal government has been rescinded or, at least, suspended by the same agency,” Sargus wrote.
Thursday’s arguments before the Cincinnati-based appeals court were conducted via videoconference, and attorney Ben Flowers argued on behalf of Ohio and Tennessee.
Flowers began by addressing whether the case had been mooted by the repeal of the 2015 rule, telling the panel he believes the EPA’s “shift in position is reasonably likely to be enjoined,” which would put the rule back into effect.
“If the rule goes back into effect,” the attorney said, “we will once again be subject to the loss of sovereignty that comes with the rule’s broader definition of navigable waters, as well as the administrative costs that come with the more expansive definition.”
Senior U.S. Circuit Judge David McKeague, an appointee of George W. Bush, interrupted Flowers and asked about the type of relief his clients are seeking.
“You want us to give you an injunction with respect to a rule that as of today is not in effect,” McKeague said.
Flowers pointed out that 27 states have injunctions of the kind Ohio and Tennessee are requesting, and that the court’s refusal to grant one puts them at a “competitive disadvantage” when planning projects and developments.
He went on to say there are a large number of cases across the country challenging both the repeal rule and the replacement rule, and that a “universal injunction” in just one of those cases would bring the Obama-era rule back into effect.
U.S. Circuit Judge Raymond Kethledge, also a Bush appointee, asked the attorney what would happen if such an injunction was granted in one of the cases challenging the new rule.
Flowers said the Sixth Circuit could author its opinion in such a way that both the 2015 rule and the most recent rule would be invalid, and the definition of navigable waters would be sent back to the “pre-2015 world.”
Attorney Jolie McLaughlin argued on behalf of the National Wildlife Federation and the Natural Resources Defense Council Inc., two intervening parties, and told the panel it cannot offer the relief requested by the states.
“This court has explained in Brandywine v. City of Richmond that it cannot enjoin enforcement of a provision that is no longer in effect,” the attorney said, referring to a 2004 decision.
McLaughlin said there is no indication the federal government intends to reenact the 2015 rule, and called the policy shift to the new rule “genuine.”
She cautioned the court against speculating on the outcomes of other cases, reiterating there is “no immediate risk of the Clean Water rule coming back into effect … and no immediate risk of harm.”
Attorney Robert Lundman argued on behalf of the EPA and the Army Corps of Engineers and told the panel his clients believe the case is moot because no state or entity has sought an injunction against the repeal rule.
Lundman argued that even if an injunction is granted regarding the newest rule, there would still be no threat of imminent harm because the 2015 rule would not go back into effect.
Judge McKeague asked the government’s attorney if the panel could declare the appeal moot and send the case back to the district court to wait on the outcome of other cases across the country.
“There have been a number of district courts who have challenges to the 2015 rule who have simply stayed proceedings to wait and see what happens because this is a complicated rule-making situation with multiple rules,” Lundman said.
“We the government have repealed the 2105 rule,” he added. “We’re not looking to defend it anymore … [and] we think leaving the cases open because of the uncertain legal landscape is sensible.”
Chief U.S. Circuit Judge R. Guy Cole Jr., a Clinton appointee, also sat on the panel.
No timetable has been set for the Sixth Circuit’s decision.