Like I said at the beginning of the month, most of us have seen this sad movie before so it is no surprise that EPA's eighth attempt to define the reach of the Federal Clean Water Act will be the law in no more than 48 of the 50 states for now.
Bloomberg Environment broke the news that Sunday Judge Jeffrey Vincent Brown of the Federal Southern District of Texas granted the States of Texas and Idaho a Preliminary Injunction preventing the nationwide application of the most recent Federal Waters of the United States rule on the ground that the States are likely to prevail in their arguments that EPA's most recent regulation improperly tramples on the states' rights and that they would be irreparable harmed if the EPA regulation was effective pending the resolution of the States' lawsuit.
So the Biden Administration EPA's Waters of the United States regulation finds itself hitting its first speed bump on what would seem to be the same tortured path as the Waters of the United States regulations of the Obama Administration EPA and the Trump Administration EPA.
Like the injunctions against the Obama Administration EPA's attempt, but unlike the injunctions against the Trump Administration EPA's attempt, this injunction does not apply from coast to coast. A footnote indicates that Texas and Idaho asked for that relief late, and didn't sufficiently support their request. We'll see whether one of the other Courts being asked to decide the same thing will see things the same way.
Speaking of Idaho, the Judge had a lot to say about the Supreme Court's pending decision in the case of the Sacketts of that same state who have challenged the Ninth Circuit Court of Appeals' ruling that the law of the Ninth Circuit is that any "water" with a "significant nexus" to a navigable water can be regulated under the Clean Water Act. At issue in that case is the Sacketts' house lot which may or many not otherwise be sufficiently adjacent to a Water of the United States to be covered by the Federal law. That "significant nexus" test, conceived by then Justice Kennedy in Rapanos v. United States, has never been adopted by a majority of the Supreme Court and many of us don't think that is going to change in Sackett v. United States.
Judge Brown also points out that the Biden Administration's EPA's regulation goes beyond what Justice Kennedy thought might be subject to Clean Water Act jurisdiction though that will matter less if a Supreme Court majority strikes down the "significant nexus" rule.
Judge Brown also had an interesting spin on the Supreme Court precedent saying that courts should defer to the judgments of an agency, in this case EPA, charged with regulating in a given area. He says that in the Fifth Circuit that precedent doesn't apply if a crime might be charged under the regulation in question.
What's next? Perhaps a review of Judge Brown's decision by the Fifth Circuit Court of Appeals if the Supreme Court doesn't issue its Sackett ruling in the meantime? Perhaps similar or conflicting decision in other District Courts in other Circuits? Most certainly, more confusion as the longest running controversy in environmental law continues.
A federal court judge in Texas issued a preliminary injunction against the Biden administration’s waters of the US, or WOTUS, rule late Sunday. The injunction applies only to Texas and Idaho.