Judge Boyle of the Federal District Court for the Eastern District of North Carolina has denied the Pacific Legal Foundation's client an injunction against EPA's and the Corps of Engineers' most recent Waters of the United States rule. The North Carolina challenge was filed several months after the United States sued that client, Robert White, for violating the Clean Water Act. Among other things, Mr. White claimed that EPA's most recent rule didn't follow the Supreme Court's holding in Sackett v. EPA and, following that holding, there are no Waters of the United States on his property so there can be no related violations of the Clean Water Act.

Mr. White's assertions were similar, but not identical, to assertions made by the States of Texas, Idaho, North Dakota and several NGOs in previously filed Federal Court challenges. Just a few days ago, the parties to the challenge pending in Federal Court in Texas filed their briefs in support of their cross motions for a summary judgment ending that case. That case also includes Constitutional challenges to the most recent Waters of the United States rule, a “major questions" doctrine challenge (the basis on which the Supreme Court struck down EPA's and the Corps' prior rule), and an argument that the most recent rule was published in violation of the Administrative Procedures Act (because there was no opportunity for public comment even though everything that could be said has already been said more times than can be counted). We'll know soon enough whether the Texas Judge sees these things the same was as Judge Boyle.

In the meantime, while the EPA Waters of the United States Rule may still be the law in North Carolina, it is still not the law in twenty-six other of our nominally United States in which it has been enjoined.

I still think there is a better than 50/50 chance that one of the District Courts or Courts of Appeal to be involved with these challenges will agree with at least some of the plaintiffs' complaints about the Waters of the United States rule.

Mr. White and the Pacific Legal Foundation were, according to Judge Boyle, focused on the idea that a “continuous surface connection” to a Water of the United States and “indistinguishability” from that Water of the United States are, following the Supreme Court's holding in Sackett, independent jurisdictional requirements. Judge Boyle said that is “isolating a phrase in Sackett from its logical connection to the remainder of the opinion.”

I think Judge Boyle is right about that.

But the most recent Waters of the United States rule also continues to extend Clean Water Act jurisdiction to “tributaries,” “impoundments,” and “wetlands” that have a “continuous surface connection” to waters that are not “traditional navigable waters, the territorial seas, [or] interstate waters” and that is much harder to square with the Supreme Court's holding in Sackett. 

That may not have mattered in Mr. White's case. And there is certainly a scientific basis for such Clean Water Act jurisdiction. But Justice Alito's opinion of the Court in Sackett (and his dissenting opinion in Maui) isn't about overwhelming scientific evidence. It is about whether there is “clear evidence that [EPA] is authorized to regulate in the manner it proposes.” And, in Sackett, the Court concluded that the Clean Water Act extends to only those “wetlands” (and other relatively permanent bodies of water connected to traditional interstate navigable waters) with a continuous surface connection to such “waters of the United States” “in their own right.”

And that's why I think EPA and the Corps aren't nearly out of the litigation woods yet as the longest running controversy in environmental law continues.