PHILADELPHIA – A federal judge has granted a move from the Environmental Protection Agency to remand a lawsuit brought by the Delaware Riverkeeper Network without vacatur, concerning a specific tenet of the Clean Water Act now under review by the administration of President Joe Biden.
Delaware Riverkeeper Network and “The Delaware Riverkeeper” Maya van Rossum first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on the following day, July 14, 2020, versus the EPA and its Administrator, Andrew R. Wheeler.
On June 1, 2020, the EPA issued a Final Rule which largely changed its regulations in implementing Section 401 of the Clean Water Act, also published in the Federal Register on July 13 of last year.
Section 401 of the Clean Water Act gives each state and Native American tribe an important but limited say in the licensing of federal projects that could affect water quality.
Per the section in question, federal agencies cannot license activities that may result in a discharge into waters of the United States, until the state whose waters would be affected by the discharge certifies that the activity will comply with applicable water-quality requirements or waives the Section 401 requirement, either affirmatively or through inaction.
In order to preserve the Act’s federal-state balance, that authority is also limited – Section 401 only authorizes states to address water quality, and only within reasonable time limits that can never exceed one year. The Final Rule is EPA’s first comprehensive effort to promulgate federal rules governing the implementation of the Clean Water Act’s Section 401.
The plaintiffs challenged the Final Rule as “arbitrary and capricious”, in violation of the Administrative Procedure Act because the defendants failed to analyze potential water quality impacts and failed to make a rational connection between the facts and the decision and ignored the text of the Clean Water Act.
Several states filed a motion to intervene on Aug. 28, 2020, to defend the Final Rule, including Arkansas, Louisiana, Mississippi, Missouri, Montana, Texas, West Virginia and Wyoming.
The American Petroleum Institute and the Interstate Natural Gas Association of America also moved to intervene in the case on Sept. 11, 2020. Both are national, non-profit trade associations that represent all facets of the natural gas and oil industry.
Additionally, the EPA moved to dismiss the plaintiffs’ case on Sept. 14, believing the claims were untimely, lacked standing and could not identify an interest which would harm the plaintiffs.
The EPA’s Final Rule became effective on Sept. 11, and the plaintiffs opposed the dismissal motion in a brief filed Sept. 28, 2020.
“Plaintiffs’ have standing to mount this facial challenge, as the Certification Rule immediately creates a substantial risk that federally licensed and permitted projects will degrade the resources of the Delaware River watershed thereby harming plaintiffs’ interests; and because the Rule curtails plaintiffs’ ability to advocate for greater environmental protections in the Section 401 certification process, and to participate in the pollution control efforts of certifying authorities,” plaintiff counsel said.
U.S. District Court for the Eastern District of Pennsylvania Judge Michael M. Baylson concurred with the plaintiffs, in an opinion issued on Dec. 18, 2020.
“The parties’ interests here are sufficiently adverse because there is a ‘substantial threat of real harm’ to plaintiffs if the Certification Rule remains in effect. Plaintiffs have pointed to multiple changes to the Section 401 certification process which would harm their interests were there to be a federally-approved project in the Delaware River watershed in the future,” Baylson said.
“While plaintiffs have not provided information as to how often there are projects subject to the certification process in this area, because the Certification Rule applies to every project in such a way that would harm them, it is reasonable to assume that this harm is likely to occur.”
Baylson added the plaintiffs’ complaint is based entirely on the Final Rule itself and the administrative record, arguing that they do not comport with the Administrative Procedure Act, Clean Water Act and 10th Amendment.
In January 2021, the Biden Administration stated that the Certification Rule is a regulation which it intends to review for potential revision or rescission. In response to the Administration announcing its intentions to review the Rule, the parties agreed to hold the case in abeyance to provide the EPA more time to determine a course of action.
“At this point, the EPA has completed its initial review of the Certification Rule and determined that it will undertake a new rulemaking effort to propose revisions due to substantial concerns with the existing Rule,” U.S. District Court for the Eastern District of Pennsylvania Judge Michael M. Baylson said.
“The EPA expects a proposed rule detailing revisions to the Certification Rule will be published in the Federal Register in Spring 2022. Following the public comment period on the proposed rule, EPA plans to review comments and other input, develop the final rule, and submit it to OMB for interagency review, with a final rule in Spring 2023.”
While the defendants filed the present motion to remand without vacatur on July 1, the plaintiffs responded on July 22, arguing that the Court should remand with vacatur, or in the alternative, that the case should proceed.
Defendant intervenors filed a joint motion to strike on Aug. 4, seeking to strike the plaintiff’s response to the extent it seeks remand with vacatur. The defendants filed a reply in support of their motion, and the plaintiffs filed a response to defendant intervenors motion to strike on Aug. 5.
UPDATE
“To begin, the Court finds that remand to the EPA is appropriate here, where the agency has indicated its clear intent to revise the Rule on its own. It would not serve interests of judicial economy to continue a case regarding a Rule that will likely no longer be law once the agency makes its revisions. Thus, the key question here is whether vacatur of the Rule is appropriate,” Baylson said.
“The present situation does not fit into either of these circumstances. The Rule is not being remanded based on an invalid process, and it has also not been found to be invalid at this stage in the case. The parties have also not pointed to other specific consequences of vacatur. As the Court has not yet, and will not, make a finding on the substantive validity of the Certification Rule, the principles discussed in SKF-USA v. United States, Inc. support a remand without vacatur.”
Meanwhile, the intervenor states had their motion to strike the plaintiffs’ response as to the issue of remanding with vacatur, defeated.
“The Court will deny defendant intervenors’ motion to strike because they had the opportunity to present arguments in support of defendants’ motion and/or in opposition to plaintiffs and chose not to. There is no basis for striking plaintiffs’ response,” Baylson said.
The plaintiffs are represented by Kacy Manahan of Delaware Riverkeeper Network in Bristol, plus Mark L. Freed of Freed Law Firm, in Berwyn.
The defendants are represented by Elisabeth H. Carter, Leslie M. Hill and Vanessa R. Waldref of the U.S. Department of Justice, in Washington, D.C.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-03412
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com