Already a Split in the Courts
Updated: Jun 26, 2020
The 2020 WOTUS rule goes into effect on Monday, and there is already a split in the courts. As I wrote on Friday, the N.D. of California denied the states plaintiffs' motion for a PI to stay the rule. Hours later, a judge in the District of Colorado went the opposite way, and enjoined the new rule, but only for the State of Colorado. See case summaries below. I think the Colorado judge got it right in holding that Rapanos precludes reliance on the plurality opinion as a basis for the new rule. I suspect the 10th Cir. will sustain that ruling. It'll be interesting to see if the plaintiffs in the California case appeal to the 9th Cir. given that the 9th Cir. has twice (United States v. Robertson and Northern California River Watch v. City of Healdsburg; three times if you count United States v. Moses) ruled that the Kennedy test applies, I don't see how that ruling survives, despite reliance on the SCOTUS Brand X opinion.
An interesting note: EPA argued Chevron due deference in its briefing in these cases, but did not invoke Chevron in the recent Maui case, where the stakes were very high. Why?
California v. EPA, No. 20-cv-03005-RS (N.D. Cal. June 19, 2020) (denying motion for PI in case challenging 2020 WOTUS rule, held that where statutory definition of WOTUS is inherently ambiguous, EPA is entitled to Chevron deference and is free to reinterpret the term to narrow its scope; agencies are not precluded from reversing course so long as they explain what they’ve done; EPA is entitled to make the policy decision to not rely on the scientific evidence assembled for the 2015 rule; lack of clarity in some provisions in new rule is not sufficient to enjoin it)
Colorado v. EPA, No. 20-cv-1461-WJM-NRN (D. Co. June 19, 2020) (granting motion for PI in challenge to 2020 WOTUS rule, held that Colorado demonstrates injury in fact by showing that new rule would create a regulatory gap on wetlands in the state; held that Rapanos forecloses reliance on the Scalia test, therefore the 2020 rule, which is based on Scalia, is not in accordance with the law in violation of the APA; leaving the current law in place protects the status quo pending resolution of the merits of the case)
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