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Federal Judge Considers States’ Bid to Block Trump Water Rule

June 19, 2020, 12:20 AM

A California federal judge is weighing whether to block the Trump administration’s controversial water rule, as requested by more than a dozen states suing over the regulation.

The U.S. District Court for the Northern District of California spent three hours Thursday hearing arguments on whether to halt the Navigable Waters Protection Rule from taking effect on June 22, as planned.

A preliminary injunction will “prevent widespread harm to national water quality, and disruption” to water pollution control in cities and states while the claim is litigated, the 17-state coalition led by California and New York argued in a motion filed last month.

The rule “seriously undermines water quality and seriously is contrary” to the Clean Water Act, New York attorney Timothy L. Hoffman, representing the coalition, told Judge Richard Seeborg.

But Justice Department lawyer Jonathan Brightbill called the arguments “phenomenally weak” and urged the court to end the “legal morass.”

Seeborg indicated he plans to rule before June 22, when the rule is set to take effect.

The new water regulation rule scales back an Obama-era definition for what qualifies as “waters of the United States,” or WOTUS, under the Clean Water Act.

Rule Takes Effect Monday

During Thursday’s hearing, lawyer Tatiana Gaur representing California described the fight against the Trump rule as a race against the clock. States will face immediate harm if the regulation takes effect as scheduled on Monday—especially those states that lack their own programs with stricter standards, she said.

Lawyers for the state challengers also argued the Trump administration failed to support its decision to replace the Obama-era protections. Brightbill responded by pointing to “multi-hundred-page” documents explaining the scientific analysis of the agency’s revision to the rule.

Judge Seeborg at one point said he was struggling with the “circularity” of some of the arguments from the California-led coalition.

He questioned how he could resolve claims that the Trump administration ignored important information in its rulemaking process without deciding the core question of which waterways the Clean Water Act covers.

Brightbill recommended Seeborg reject the preliminary injunction request and allow the Trump rule to take effect while the case plays out.

Rapanos

The hearing featured lengthy debates about the infamously fractured 2006 Supreme Court decision Rapanos v. United States, and whether the Trump administration is allowed to root its rule in the reasoning presented in late Justice Antonin Scalia’s plurality opinion in the case.

The plurality opinion supports a narrower Clean Water Act interpretation largely embraced by the Trump administration. The Obama administration, by contrast, relied on a broader concurring opinion from then-Justice Anthony Kennedy.

New York’s attorney Philip Bein argued that Scalia’s opinion is contrary to the text of the statute.

“It’s been characterized as the agency just read the plurality decision and rubber-stamped it, but that’s not true,” Brightbill responded.

DACA Precedent

Bein also seized on a U.S. Supreme Court decision issued hours earlier, in a case involving the Deferred Action for Childhood Arrivals, or DACA, program.

The high court rejected the Trump administration’s bid to scrap the program in part because the government didn’t properly consider how people had relied on the expectation that the program would stay intact.

The same is true for the Trump water rule, Bein said. States made their own water regulation decisions with the expectation that the federal government would continue protecting the broad set of waters it oversaw before the Trump administration’s rule, he said.

Brightbill countered that the Trump water rule, unlike the DACA rescission, went through an in-depth rulemaking process that accounted for the fact that any parties arguably relied on previous policies.

Scope of Injunction

Seeborg also questioned how broad an injunction he should issue, if he agrees to issue one at all.

California, New York, and their partners argued that an injunction should apply nationwide so all states involved could protect themselves from pollution from upstream states.

Georgia attorney Andrew Pinson, representing his state and others that support the Trump rule, pushed back, saying the plaintiffs hadn’t shown “irreparable harm is likely to flow from our states to theirs.”

Brightbill said the law requires any injunction to remain limited to the smallest scope possible to address imminent and irreparable injury.

The Trump administration has repeatedly expressed frustration about nationwide injunctions blocking key policies in recent years. Trump lawyers and others in conservative legal circles say district courts lack authority to issue such orders.

The case is California v. Wheeler, N.D. Cal., No. 3:20-cv-03005, hearing 6/18/20.

To contact the reporters on this story: Alexandra Yetter in Washington at ayetter@bloombergindustry.com; Ellen M. Gilmer in Washington at egilmer@bloombergindustry.com

To contact the editors responsible for this story: Gregory Henderson at gHenderson@bloombergindustry.com; Renee Schoof at rschoof@bloombergindustry.com; Anna Yukhananov at ayukhananov@bloombergindustry.com

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