Update: On May 10, 2023, the Sixth Circuit Court of Appeals issued a ruling enjoining the 2023 WOTUS rule in the state of Kentucky, bringing the total number of states where the rule is enjoined in 28.
Over the last month, there have been several developments in the litigation over implementation of the key Clean Water Act (“CWA”) term “waters of the United States” (“WOTUS”). The definition of WOTUS is critical for implementing the CWA because only those waters that fall under the WOTUS definition will be regulated under the CWA. The Environmental Protection Agency (“EPA”) is responsible for issuing regulations to define the key term, which has proven to be a challenge. Since 2015, there have been three different rulemakings to introduce new WOTUS definitions. The latest WOTUS definition, which went into effect on March 20, has been the subject of three legal challenges. Although one of the lawsuits was dismissed, the other two lawsuits have resulted in injunctions preventing the 2023 WOTUS rule from taking effect in 26 states and a temporary stay of the rule in a 27th state. To learn more about the rule itself, click here.
Elements of an Injunction
Currently, three separate federal courts have issued rulings on motions to enjoin the 2023 WOTUS rule from remaining in effect while the underlying legal challenges to the rule are litigated. While an injunction does not mean that the challenged rule has been overturned, it does indicate that the judge issuing the injunction has determined that the plaintiffs are likely to win on the merits of their claims.
An injunction is a court order requiring a person to either take or cease doing a certain action. There are different types of injunctions that are issued at different points in the lawsuit, and last for different amounts of time. Typically, when a plaintiff is suing to challenge a regulation passed by a government agency, the plaintiff will ask for a preliminary injunction which may be issued early in the lawsuit. Preliminary injunctions are usually granted before trial or oral argument with the goal of preserving the “status quo” while the underlying matter is litigated. For lawsuits challenging government rules, the status quo preserved by a preliminary injunction is typically whatever the law was before the challenged government rule was in place.
According to the Supreme Court in Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008), a preliminary injunction is an “extraordinary remedy never awarded as a right.” Therefore, the party seeking the injunction (usually the plaintiff) must demonstrate to the court that four required elements are satisfied. Those elements include: (1) the likelihood that the plaintiff will succeed on the merits of their claims; (2) that injunctive relief is necessary to prevent irreparable harm to the plaintiff; (3) that the threatened irreparable harm to the plaintiff outweighs any harm that injunctive relief may cause to the defendant; and (4) that injunctive relief is consistent with the public interest.
To satisfy the first element, it is not necessary for the plaintiff to show that their underlying arguments are certain to win at trial. Instead, it is enough for the plaintiff to show that they are “substantially” likely to win on the merits of their claims. In other words, the plaintiff must demonstrate that there is a more than minimal chance that their arguments are likely to succeed. While the plaintiff must satisfy all four elements of the preliminary injunction test, the first factor is considered the most important. A court will not consider the other three factors if the plaintiff fails to show that they are likely to succeed on the merits of their claims.
If the plaintiff has satisfied the first element of the preliminary injunction test, the court will move onto the other three. To demonstrate the necessary “irreparable harm,” the plaintiff must provide evidence that if injunctive relief is not granted, they will suffer an irreparable injury. While the injury does not need to have already occurred for the plaintiff to be successful on this element, it must be an injury that is real and immediate should injunctive relief not be granted. To satisfy the third element weighing the “balance of harms,” the plaintiff must show that the alleged irreparable harm that they will suffer without injunctive relief is significant, while only minimal harm will occur to the defendant if injunctive relief is granted. If the court finds reasonable evidence that a preliminary injunction would unduly burden the defendant, that is grounds for the court to deny injunctive relief. Finally, to satisfy the “public interest” element, the plaintiff must show that granting a preliminary injunction would not be harmful to the public interest. Because courts recognize that the public has a strong interest in the enforcement of valid laws, in cases where the plaintiff is challenging a law or regulation, the “public interest” element will often be based in part on whether the plaintiff has demonstrated that they are likely to succeed on the merits. If the plaintiff successfully shows that they are likely to succeed in their claims that the law is invalid, it is generally considered not to be in the public interest to enforce an invalid law.
Recent WOTUS Injunctions
As of April 2023, three courts have issued orders on requests for injunctions in lawsuits challenging the 2023 WOTUS rule. Two courts granted the plaintiffs’ request for a preliminary injunction, while the other court dismissed the case entirely for the plaintiffs’ failure to state a valid claim. The plaintiffs in that case have appealed the court’s decision to dismiss and received a temporary stay of the rule while the appeal is litigated. To learn more about the claims raised by plaintiffs in each lawsuit, click here.
State of Texas v. EPA
The first injunction against the 2023 WOTUS rule was issued on March 19, 2023, by a federal judge in State of Texas v. EPA, No. 3:23-cv-00017 (S.D. Tex.). The court began its preliminary injunction analysis by considering whether the plaintiffs had show they were likely to succeed on the merits of their claims that the 2023 WOTUS rule exceeds the authority granted to EPA by the CWA, that the rule violates the Tenth Amendment of the United States Constitution which delegates the power to regulate land and water resources to the states, and that EPA did not have clear Congressional authorization to adopt the 2023 WOTUS rule. According to the court, two aspects of the 2023 rule indicated that the plaintiffs were likely to succeed on the merits of their claims – the rule’s significant nexus, and the extension of jurisdiction over all interstate waters regardless of “navigability.”
The 2023 WOTUS rule incorporates the significant nexus test as a way of determining whether certain waters meet the definition of WOTUS. The test was first articulated by Justice Kennedy in the landmark case Rapanos v. U.S., 547 U.S. 715 (2006), but was not formally codified until the 2023 WOTUS rule. According to the judge in State of Texas v. EPA, the plaintiffs were likely to succeed to the merits of their claim that the 2023 rule exceeds the CWA’s jurisdiction because the significant nexus test in the 2023 rule “ebbs beyond” the significant nexus test established by Justice Kennedy. The court also determined that the inclusion of all interstate waters in the 2023 WOTUS rule regardless of navigability extends beyond the text of the CWA which uses the phrase “navigable waters” as a basis for jurisdiction. While courts have determined that CWA jurisdiction goes beyond “traditional navigable waters,” they have also determined that EPA cannot read navigability out of the WOTUS definition. For those two reasons, the judge in State of Texas v. EPA concluded that the plaintiffs were likely to succeed on the merits of their underlying claims.
After determining that the first element of the injunction test was satisfied, the court moved onto the other three elements. The court determined that if the 2023 WOTUS rule were not enjoined, the plaintiffs would suffer irreparable harm by taking on compliance costs associated with complying with the new rule. The court concluded that such harm outweighed any harm to the defendants because the plaintiffs would be forced to spend unrecoverable resources on complying with the 2023 WOTUS rule if it went into effect while the defendants would suffer no harm if the rule were enjoined while the litigation proceeded. Finally, the court determined that since the plaintiffs had shown that they were likely to succeed on the merits, enjoining the 2023 WOTUS rule was in the public interest because “there is little public interest or efficient gained with implementing” a rule that is likely to be ruled invalid.
The injunction issued in this case applies to both Texas and Idaho.
State of West Virginia v. EPA
The first injunction against the 2023 WOTUS rule was issued on April 12, 2023, by a federal judge in State of West Virginia v. EPA, No. 3:23-cv-00032 (D. N.D.), and applies to 24 different states. Like the court in State of Texas v. EPA, the court in State of West Virginia v. EPA began its analysis by considering the plaintiffs’ likelihood of success on the merits. The plaintiffs in State of West Virginia v. EPA raised similar claims as the plaintiffs in State of Texas v. EPA, and the courts offered a similar analysis of the merits of those claims. According to the court in State of West Virginia v. EPA, the plaintiffs were likely to succeed on their claim that the 2023 WOTUS rule went beyond the jurisdiction granted to EPA under the CWA because the rule incorrectly granted jurisdiction to all interstate waters regardless of navigability and misinterpreted Justice Kennedy’s significant nexus test. Additionally, the court found that the 2023 rule raised “a litany of other statutory and constitutional concerns.”
Next, the court turned to the other three elements of the preliminary injunction test. Like the court in State of Texas v. EPA, the court here found that the plaintiffs had demonstrated irreparable harm in the form of compliance costs. Specifically, the court highlighted various infrastructure projects that different plaintiff states had identified as likely to incur additional costs if the states had to determine whether waters located in the project areas were considered WOTUS under the 2023 rule. Additionally, the court determined that the defendant would not suffer any actual harm if the 2023 rule were enjoined, satisfying the third element of the preliminary injunction analysis. Finally, the court determined that it would be in the public interest to issue an injunction to avoid enforcement of a rule that is likely to be found invalid.
Commonwealth of Kentucky v. EPA
Only one of the three courts where challenges to the 2023 WOTUS rule were brought declined to issue an injunction. In Commonwealth of Kentucky v. EPA, No. 3:23-cv-0007 (E.D. Ky.), the court found that the plaintiffs had failed to demonstrate an impending injury and dismissed the case as not ripe for review. The plaintiffs have appealed this ruling, and the appellate court granted a temporary stay of the rule that will last through May 10.
When a plaintiff brings a claim to court, they must show that they have the necessary standing for a court to hear their dispute. If a plaintiff is unable to demonstrate that they have standing, the court will dismiss their case. Standing is satisfied if the plaintiff shows all three of the following: (1) the plaintiff has suffered an actual “injury-in-fact” which is defined as an injury that is either concrete and particularized, or actual or imminent; (2) the injury is result of the defendant’s disputed conduct; and (3) the court is capable of redressing the injury. In Commonwealth of Kentucky v. EPA, the court found that the plaintiffs did not have standing because the plaintiffs failed to show that they had suffered an actual injury-in-fact.
The plaintiffs in Commonwealth of Kentucky v. EPA include private sector plaintiffs as well as the state of Kentucky. All plaintiffs alleged that if the 2023 WOTUS rule went into effect, they would be injured as a result of “likely” future costs associated with coming into compliance with the rule, including expending additional resources to determine whether the 2023 rule would apply to waters on their properties. The court determined that these possible future costs were too speculative to meet the definition of “injury-in-fact.” According to the court, until the plaintiffs “did not identify any specific water feature or related project and explain how the  rule will affect it.” Therefore, the court concluded that the plaintiffs had failed to identify a “certainly impending injury.” The court also considered claims raised by the state of Kentucky that the 2023 rule infringes upon its state sovereignty by expanding CWA jurisdiction to include more waters. Once again, the court found that this claim did not demonstrate an “injury-in-fact” because the state was unable to show that the 2023 rule would grant the federal government jurisdiction over land or waters “which should be in [the state of Kentucky’s] exclusive control.”
Because the court found that the plaintiffs did not have standing, it dismissed the case. The dismissal was without prejudice, meaning that the plaintiffs are free to refile their suit provided they resolve their issues with standing. The plaintiffs have appealed the court’s decision to dismiss, and in a two-page ruling the appellate court ordered that the 2023 WOTUS rule be temporarily stayed while the appeal is litigated. The stay will last through May 10.
As a result of the court decisions discussed above, the 2023 WOTUS rule is currently enjoined in 27 states. Those states will apply the pre-2015 WOTUS definition while the lawsuits challenging the 2023 rule continue to be litigated.
The future of the 2023 WOTUS rule remains unclear. While the judges in both State of Texas v. EPA and State of West Virginia v. EPA have issued injunctions, the lawsuits could still take months or years to resolve. Additionally, the United States Supreme Court has yet to issue its decision in a case it heard last October concerning the scope of CWA jurisdiction and the definition of WOTUS. That decision is expected to impact the WOTUS definition. In the meantime, it is possible that the 2023 WOTUS definition could be blocked in other states.
To read the judge’s decision in State of Texas v. EPA, click here.
To read the judge’s decision in State of West Virginia v. EPA, click here.
To read the judge’s decision in Commonwealth of Kentucky v. EPA, click here.
For more information on the regulatory history of WOTUS, click here for NALC’s WOTUS Timeline.