On January 21, 2021, the Environmental Protection Agency (“EPA”) sent a letter to the Department of Justice (“DOJ”) requesting stays for pending litigation that seek judicial review of EPA regulations implemented during the Trump administration. In other words, EPA is asking that the DOJ request that courts slow down or pause cases involving EPA actions between January 20, 2017 and January 20, 2021, while EPA reviews those actions and determines the appropriate path forward under a new administration. The request coincides with two orders from President Biden ordering a review of agency actions taken by the Trump administration, and freezing all Trump-era rules that have not yet taken legal effect. Additionally, the Biden administration has released a non-exclusive list of agency actions taken during the Trump administration that it intends to review. However, EPA is requesting that DOJ seek stays of litigation for all lawsuits targeting EPA actions taken during the last four years, not just those specifically identified for review.

The Biden administration has inherited numerous lawsuits challenging actions taken by EPA during the Trump administration. Many of those lawsuits may have progressed past the point where a stay of litigation will be appropriate, while others could be paused for certain periods of time. The following is a review of certain cases relevant to the agricultural industry which could be put on hold as a result of EPA’s request, and where those cases are in the litigation process.

WOTUS Litigation

The Navigable Waters Protection Rule (“Navigable Waters Rule”) was passed by the Trump administration in 2020, taking legal effect in June of that year. The rule redefines the term “waters of the United States” (“WOTUS”) under the Clean Water Act (“CWA”), and replaces an Obama-era regulation which had previously defined the term WOTUS. The Biden administration has been specifically identified the Navigable Waters Rule as one it will review. In the meantime, numerous cases have been filed seeking judicial review of the rule, some of which may be stayed following the request from EPA. While many of the lawsuits targeting the Navigable Waters Rule claim that the rule should be overturned because it does not do enough to protect the nation’s waters, other lawsuits argue that the rule goes too far and overregulates beyond the scope of the CWA. For additional information on the background of these cases, click here and here.

Both states and environmental groups have challenged the Navigable Waters Rule for being too narrow. In State of California v. Wheeler, No. 20-cv-03005 (N.D. Cal. 2020) and State of Colorado v. U.S. Envtl. Prot. Agency, No. 20-cv-1461 (D. Colo. 2020), a state has filed suit asking that the court vacate the Navigable Waters Rule for not protecting the nation’s waters as required by the CWA. Both cases were filed in May, 2020, after the final Navigable Waters Rule was published in the Federal Register, but before it took legal effect. At this point, neither case has resulted in a judicial opinion on the legality of the Navigable Waters Rule, however the plaintiffs in both cases requested a preliminary injunction that would prevent the rule from taking effect in their respective jurisdictions. Preliminary injunction was denied in the California case, but was granted in the Colorado case under limited circumstances. Specifically, the preliminary injunction barring the Navigable Waters Rule from taking effect in Colorado only applies to the United States Army Corps of Engineers (“Corps”). EPA and the Corps jointly administer the CWA, although the EPA is tasked with determining the definition for WOTUS. Accordingly, EPA can follow the Navigable Waters Rule in Colorado, but the preliminary injunction prevents the Corps from implementing that rule while the litigation continues. Both the California and Colorado cases are currently on-going.

Chesapeake Bay Found., Inc. v. Wheeler, No. 20-cv-01063 (D. Md. 2020) and South Carolina Coastal Conservation League v. Wheeler, No. 20-cv-01687 (D. S.C. 2020) were both brought by environmental groups challenging the legality of the Navigable Waters Rule. In each case, the plaintiffs argue that the rule is too narrow to fulfill the requirements of the CWA and must be vacated. Motions for summary judgement have been filed by the plaintiffs and defendants in each case, meaning that the parties in both lawsuits have asked the judge to review their respective arguments and make a decision by applying the arguments to undisputed facts. While a hearing for oral argument has not been scheduled in Chesapeake Bay Found., Inc. v. Wheeler, a hearing on the motions for summary judgment had been scheduled for February 4, 2021 in South Carolina Coastal Conservation League v. Wheeler. However, that hearing has been postponed following a joint request from all the litigating parties. In their request to postpone the hearing, the parties referenced the executive order from the Biden administration announcing a review of multiple EPA regulations. Currently, the postponement is only for thirty days, but if the government requests a stay of litigation that postponement could become much longer.

Finally, three cases have been filed by different state Cattlemen’s Associations challenging the Navigable Waters Rule for being too restrictive. The plaintiffs in Oregon Cattlemen’s Ass’n v. U.S. Envtl. Prot. Agency, No. 19-cv-00564 (D. Or. 2019), Washington Cattlemen’s Ass’n v. U.S. Envtl. Prot. Agency, No. 19-cv-00569 (W.D. Wash. 2019), and New Mexico Cattle Growers Ass’n v. U.S. Envtl. Prot. Agency, No. 19-cv-00988 (D. N.M. 2019) all argued that the Navigable Waters Rule violated the CWA by regulating too broadly. Currently, the cases are at varying stages of litigation. The Oregon case was dismissed in August 2020 for lack of standing. The dismissal was without prejudice, meaning that the plaintiffs could refile their case provided they amend their complaint to show that they have the proper standing to bring their claims. The parties in the Washington case filed motions in 2020 requesting that their case be consolidated together with a similar case filed in the same district court also targeting the Navigable Waters Rule. The court has yet to decide whether the cases will be consolidated. Lastly, the plaintiffs in the New Mexico case filed a request for preliminary injunction to stop the Navigable Waters Rule from having legal effect in the state of New Mexico while the case is litigated. The court has yet to determine whether to grant the plaintiffs’ request.

Ultimately, it is possible that each of the above cases, and any other lawsuits challenging the Navigable Waters Rule, could be paused while EPA reviews the rule.

Pesticide Litigation

Other on-going cases that may be stayed include lawsuits challenging Trump-era rules regarding pesticides. There currently multiple lawsuits targeting pesticide-related regulations passed by the Trump administration’s EPA. The following is a sample of the types of cases that may be affected by the request to pause such cases.

In State of New York v. U.S. Envtl. Prot. Agency, No. 20-cv-10642 (S.D. N.Y. 2020), a group of states filed suit challenging a rule on application exclusion zones (“AEZs”). An AEZ is the area surrounding the pesticide application equipment that must be free of all persons not appropriately trained during the application of the pesticide. The rule targeted by this lawsuit establishes a 25-foot AEZ for all ground spray pesticide applications, and exempts pesticide applicators from implementing AEZ requirements beyond the boundaries of the establishment where the pesticides are being applied. This is a narrowing of a similar rule adopted in 2015 which established an AEZ of 25 to 100 feet depending on the method of application, and required the pesticide applicator to cease application anytime a person entered the AEZ, regardless of whether the person was within the boundaries of the establishment or not. In their complaint, the states argue that the new AEZ rule should be overturned because EPA failed to adequately justify the changes. The case was originally filed in December, 2020, and has therefore not had time to get too far in the litigation process. However, the court has agreed to prevent the rule from taking legal effect, and on January 20, 2021 issued an order preventing the rule from taking effect for an additional 30 days.

Other pesticide-related cases that the DOJ may seek to press the pause button on include those targeting the dicamba use label which was approved in late 2020. Although a pesticide label is not a regulation, EPA may still decide to ask for stays of litigation in cases targeting the dicamba label to allow the agency time for review.

The plaintiffs in Nat’l Family Farm Coal. v. U.S. Envtl. Prot. Agency, No. 20-73750 (9th Cir. 2020) filed suit in December, 2020, arguing that the dicamba label approved by EPA violates the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). According to the plaintiffs, EPA failed to sufficiently support its registration of dicamba for use under FIFRA. The plaintiffs are asking the court to vacate the label, which could potentially make it unlawful to use the pesticide. Currently, the lawsuit is not very far into the litigation process. Manufacturers of dicamba-based pesticides have moved to intervene in the case, and the court has agreed to transfer the lawsuit out of the Ninth Circuit to the District of Columbia. The lawsuit is similar to one the plaintiffs filed in 2018 which was decided in June, 2020. For more information on that lawsuit and other dicamba litigation, click here and here.

Finally, another lawsuit targeting the dicamba label was filed in November, 2020 by two agricultural groups. In American Soybean Ass’n v. Wheeler, No. -20-cv-03190 (D. D.C. 2020) the plaintiffs filed suit arguing that certain aspects of the dicamba label were unlawfully restrictive. The plaintiffs asked that the court invalidate the portions of the label which the plaintiffs allege are unlawful, and send the label back to EPA for revision. Importantly, the plaintiffs also asked that the court uphold the remainder of the dicamba label. The case is currently on-going. For a closer look at the arguments being made by the plaintiffs, click here.

Conclusion

The cases mentioned above are a non-exclusive list of lawsuits which could be impacted by EPA’s request to DOJ. Currently, the government has not filed a formal request to stay litigation in any of the above cases. Until such a request is made, and an order to stay the case issued by the court, all the lawsuits will continue.

Finally, it is important to note how broad EPA’s request is. The agency is asking DOJ to request a pause on all litigation concerning actions taken by EPA over the course of four years. This could potentially affect lawsuits targeting rules or regulations issued by EPA as far back as January, 2017. If DOJ seeks to pause all such litigation, the ultimate impact could be far-reaching.

For more National Agricultural Law Center resources on the CWA, click here.

For more National Agricultural Law Center resources on pesticides, click here.