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Administrative – Rule Promulgation – Environmental – ‘Waters of the United States’

By: Teresa Bruno, Opinions Editor//September 7, 2018

Administrative – Rule Promulgation – Environmental – ‘Waters of the United States’

By: Teresa Bruno, Opinions Editor//September 7, 2018

Even though the rule in question, “the Suspension Rule,” merely suspends a controversial rule that expanded the definition as to which waters can be regulated by the U.S. government, given the widespread effect of the Suspension Rule and the limited public comment allowed on it, the government violated the Administrative Procedure Act in promulgating the Suspension Rule.

The court enjoins implementation of the Suspension Rule. The injunction applies nationwide.

In promulgating the Suspension Rule, the government violated the APA by refusing to solicit or consider any substantive comments on the change of regulatory definition to “waters of the United States” from the 2015 Clean Water Rule (the WOTUS Rule) back to the definition in a 1980s regulation.

An agency’s suspension of a set of regulations and reinstatement of another set of regulations qualifies as “rule making” under the APA, triggering notice and comment requirements.

As the Fourth Circuit made clear in N. Carolina Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755 (4th Cir. 2012), when an agency refuses to consider comments on a rule’s substance and merits in issuing a suspension rule that reinstates an earlier regulation, the content restriction is “so severe in scope” that “by preventing any discussion of the ‘substance or merits’ of either set of regulations” the opportunity for comment “cannot be said to have been a ‘a meaningful opportunity.”

Here, the Suspension Rule explicitly restricted public comments to “whether it [was] desirable and appropriate to add an applicability date” to the WOTUS rule and whether the two-year delay in implementing what would be an ultimately revised definition of the “waters of the United States” should be “shorter or longer.”

The text of the proposed rule and the EPA Memorandum for the Record on Suspension Rule Rulemaking Process make clear that the Environmental Protection Agency and the Army Corps of Engineers (the agencies) did not solicit any comments on the merits of the WOTUS rule or the merits of the 1980s regulation before issuing the Suspension Rule. The agencies refused to engage in a substantive reevaluation of the definition of the “waters of the United States” even though the legal effect of the Suspension Rule is that the definition of “waters of the United States” ceases to be the definition under the WOTUS rule and reverts to the definition under the 1980s regulation. The definition of “waters of the United States” is drastically different under these two regulations.

The agencies’ decision to promulgate the Suspension Rule without allowing the public to comment on the substance of either the WOTUS Rule or the 1980s regulation renders the notice-and-comment rule making infirm under the APA. An illusory opportunity to comment is no opportunity at all.

The WOTUS rule received over one million public comments during a notice-and-comment period that was over 200 days, and the rule making process itself involved over four years of reviewing thousands of peer-reviewed scientific studies. This stands in sharp contrast to the Suspension Rule, which received over 680,000 public comments in the few weeks that public comment was open and was promulgated in mere months in a process that involved instructing the public to withhold substantive comments and did not consider any scientific studies. While not determinative, the length of the rule making process is a factor in the court’s analysis.

An agency changing its course must supply a reasoned analysis. No such “reasoned analysis” was provided in the promulgation of the Suspension Rule. By refusing to allow public comment and consider the merits of the WOTUS rule and the 1980s regulation, the agencies did not allow a “meaningful opportunity” to comment.

As such, the court finds that the agencies were arbitrary and capricious in promulgating the Suspension Rule. The court vacates the Suspension Rule for this reason. To allow the type of administrative evasiveness that the agencies demonstrated in implementing the Suspension Rule would allow government to become a matter of the whim and caprice of the bureaucracy.

Certainly, different administrations may implement different regulatory priorities, but the APA requires that the pivot from one administration’s priorities to those of the next be accomplished with at least some fidelity to law and legal process. The agencies failed to promulgate the Suspension Rule with that required fidelity here. The court cannot countenance such a state of affairs.

The court sees no principled reason why the Suspension Rule should be enjoined in some states but not others.

First, environmental plaintiffs are located throughout the United States. Second, environmental plaintiffs have brought a facial challenge to agency action under the APA. Perhaps most saliently, a nationwide injunction is necessary to provide complete relief.

The Suspension Rule’s effect is felt across the United States. Accordingly, the court enjoins the Suspension Rule nationwide.

Motion granted.

South Carolina Coastal Conservation League et al v. Pruitt et al (Lawyers Weekly No. 002-180-18, 18 pp.) (David Norton, J.) 2:18-cv-00330. Frank Holleman, Geoffrey Randall Gisler and J. Blanding Holman for plaintiffs; Barbara Murcier Bowens for defendant; Michael Branch Kimberly, Timothy Bishop, William Thomas Lavender and Joan Wash Hartley for intervenors. D.S.C.


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