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Federal court enjoins application of Biden’s WOTUS rule in Texas and Idaho
By Jim Bradbury and Kyle Weldon
James D. Bradbury, PLLC
In January 2023, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) published the Biden administration’s rule to define the “scope of waters protected” under the Clean Water Act (the Biden Rule). This is the latest in a series of attempts to define waters under the Clean Water Act, following the Obama rule and the Trump rule.
The EPA stated that it believes the Biden Rule establishes “a clear and reasonable definition” of WOTUS and “reduces the uncertainty from constantly changing regulatory definitions.” However, as discussed in more detail in our summary of the new Biden Rule in our January 2023 Dairy Dispatch article (found here), the Biden Rule’s authorization of additional tests that the EPA or Corps can rely on to determine if waters are jurisdictional expands the range of water that may qualify for Clean Water Act protections and increases the uncertainly of those regulated. The Biden Rule took effect on March 20.
In response to the Biden Rule, the State of Texas and five Texas state agencies (Texas Commission on Environmental Quality, Railroad Commission of Texas, Texas Department of Agriculture, Texas General Land Office and Texas Department of Transportation) filed suit against the EPA and the Corps in the United States District Court for the Southern District of Texas on Jan. 18 to enjoin the implementation of the Biden Rule. Among many of the concerns presented by Texas and its agencies regarding the Biden Rule, the Texas Department of Transportation stated that it anticipated that the Biden Rule would impose millions of dollars in mitigation costs within just the first year. In February, Texas amended its complaint to add the State of Idaho and several Idaho agencies as plaintiffs. A second parallel lawsuit was also filed by several trade associations in the United States District Court for the Southern District, which was consolidated with the Texas and Idaho suit in February.
In this suit, the plaintiffs have challenged the Biden Rule on both statutory and constitutional grounds. Statutorily, the plaintiffs allege that the EPA and Corps violated the Administrative Procedures Act, which is the statute that governs how agencies make rules, such as the Biden Rule. Regarding the constitutional grounds, the plaintiffs asserted that the Biden Rule was unconstitutional as it violated, among other provisions, the Commerce Clause, the 10th Amendment, and the Due Process Clause. On March 19, the United States District Court for the Southern District of Texas granted Texas and Idaho’s motion for injunctive relief, which enjoined the EPA and the Corps from implementing or enforcing the Biden Rule within those two states, pending further order of the Court.
At least 25 other states have filed similar complaints and motions for preliminary injunctions in other jurisdictions regarding the Biden Rule. On April 12, the United States District Court for the District of North Dakota issued a preliminary injunction that enjoins the EPA and Corps from “enforcing, implementing, applying or giving effect” to the Biden Rule in the plaintiff states of West Virginia, North Dakota, Georgia, Iowa, Alabama, Alaska, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia and Wyoming. That brings the total to 26 states in which the Biden Rule is now prohibited by injunction.
Considering these preliminary injunctions, the EPA and the Corps are currently interpreting “waters of the United States” in Texas and Idaho (and the other above listed states involved in the North Dakota litigation) consistent with the pre-2015 regulatory regime. There will be more to come, as this lawsuit and other similar suits continue across the country. In addition, the United States Supreme Court is expected to issue an opinion sometime this year in the Sackett v. EPA case, which addresses the proper test for determining whether wetlands are WOTUS under the Clean Water Act.