When Environmental Protection Agency Administrator Andrew Wheeler sat before the U.S. House Committee on Science, Space and Technology at 10 a.m. Thursday, he’d already alerted the committee chairwoman he needed to be done by noon. Over the next two hours, committee members — depending on party — either took Wheeler to task or worked with the administrator to pad Trump administration talking points.
Last week, the EPA officially repealed the 2015 Clean Water Rule, a regulatory measure the Obama administration sought to expand and enhance clean water protections. The second the regulation hit the books, lawsuits appeared in courts all across the country, including federal court in Brunswick, backed by states generally governed by Republicans, along with large manufacturing and agribusiness groups.
Wheeler didn’t talk much about WOTUS and his agency’s major changes to the scope and enforcement of the Clean Water Rule.
Responding to a question from U.S. Rep. Randy Weber, R-Texas, Wheeler said, “On (the Waters of the United States, or WOTUS), as soon as the Obama administration went forward with their WOTUS proposal, it was stayed by courts around the country. It was only in effect in 22 states — 28 other states were not following the Obama WOTUS proposal, which is why we had to withdraw it so we could have one regulation for the entire country. We didn’t think a patchwork approach would be useful for WOTUS.”
Regarding Georgia and 10 other states, the reality is more complex that what Wheeler said. Legal strategies and lawsuits whirred into action, but federal courts don’t act that fast.
The states filed their lawsuit in Brunswick on June 30, 2015, and the Obama EPA a month later asked for a stay in order to transfer the case to a judicial panel on multi-district litigation. The federal court system uses MDLs to handle — as the name suggests — numerous cases from different jurisdictions that have similar issues. For instance, there is an MDL currently in Ohio regarding lawsuits against opioid manufacturers.
The hearing on the EPA’s motion for a stay and the state’s motion for preliminary injunction occurred on Aug. 12, followed by post-hearing brief filings. U.S. District Judge Lisa Godbey Wood denied the preliminary injunction motion on Aug. 27. In October, a different judge denied the MDL transfer.
The reason a patchwork of regulation enforcement existed on what was regulated by the Clean Water Act and what was not, is that different cases filed in different courts with different jurisdictions take different amounts of time and achieve different results.
Indeed, the states were successful in an interlocutory appeal to the 11th U.S. Circuit Court of Appeals, which vacated — on Jan. 24, 2018 — Wood’s denial of preliminary injunction. She didn’t grant that injunction, which applied to Georgia and the other states involved in the suit, until June 2018, three years after the lawsuit began and the WOTUS rule went into effect.
The same day in August of this year that the EPA Region 4 administrator was in Glynn County, Wood issued her order — a full nine months after the last hearing in the case — granting summary judgment to the state plaintiffs, declaring the 2015 rule violated the Administrative Procedure Act, and remanded the regulations back to EPA and the Army Corps of Engineers for further work.
Tuesday, the states filed a motion with the court asking for Wood to vacate the 2015 rule in its entirety.
The states argue, “And this relief is needed because without it, there remains a real risk that challenges to the agencies’ planned repeal of the 2015 rule brought in different district courts could result in this unlawful rule going into effect in some or all of the plaintiff states — after the states have spent more than four years in litigation before this court to protect their residents from that very result.
“This court issued a preliminary injunction to protect the plaintiff states from that harm during the pendency of this litigation. Having now concluded in a final order that the 2015 WOTUS rule is unlawful in numerous respects, this court should provide a remedy that will make that protection permanent.”
The business intervenors — large manufacturing and agribusiness associations — made a similar motion Sept. 6.