Written by: Amie Alexander, JD/MPS Candidate, William H. Bowen School of Law


The United States District Court for the District of South Carolina issued an order on August 16, 2018, granting a motion for summary judgment filed by conservation groups. The Court agreed with conservation groups that the government had failed to follow the regulatory requirements put in place by the Administrative Procedure Act (APA) and granted their motion for summary judgment, enjoining the rule suspending the Waters of the United States (WOTUS) Rule nationwide. You can read the decision here.

Conservation groups filed suit against the Environmental Protection Agency (EPA) Administrator Scott Pruitt, the EPA, and the United States Army Corps of Engineers in the United States District Court for the District of South Carolina. Plaintiffs include the following conservation groups: 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.

Before the court was the plaintiffs’ motion for summary judgment, as well as a cross-motion for summary judgment by defendants. Also before the court was the response in support of the government’s cross-motion filed by intervening Industry groups.

Background

This suit arose out of the Suspension Rule to delay the 2015 “Waters of the United States” Rule until 2020, and in the interim period, the controlling interpretation of WOTUS was that prescribed by the 1980s regulations put in place prior to the WOTUS Rule. This interpretation specifically excluded “waters that are themselves wetlands,” in comparison to the 2015 WOTUS Rule which included seasonal streams, wetlands, and tributaries in the interpretation. The Suspension Rule was published in the Federal Register on February 6, 2018, after President Donald Trump’s Executive Order 13778 entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”

This Court’s Analysis

Plaintiffs filed this suit alleging the following: (1) in promulgating the Suspension Rule, the EPA and Army Corps failed to comply with the required notice and comment process of the Administrative Procedure Act (APA); (2) the government’s actions were arbitrary and capricious under the APA; and (3) the government’s actions violate the APA’s requirement that federal agencies publish the language of any substantive regulations they intend to have legal effect. Plaintiffs requested that the Court vacate the Suspension Rule.

The Court agreed that the government’s refusal to consider or receive public comments on the substance of the Rule did not provide a “meaningful opportunity for comment,” and granted summary judgment. The Court did not consider the plaintiffs’ third argument.

In reaching this decision, the Court emphasized the stark differences in the notice and comment process between the WOTUS Rule and the Suspension Rule. The WOTUS Rule received over one million public comments during a notice and comment period exceeding 200 days, and the rule making process took over four years. The Suspension Rule, in contrast, received over 680,000 public comments in a few weeks, and the rule was promulgated in a few months.

Because the Court found that the government failed to comply with the requirements of the APA in implementing the Suspension Rule, the Court granted the plaintiffs’ motion for summary judgment and enjoined the Suspension Rule nationwide.