2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 1 of 21

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1 2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 1 of 21 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION SOUTH CAROLINA COASTAL CONSERVATION LEAGUE, et al., No. 2:18-cv (DCN) v. Plaintiffs, ANDREW WHEELER, in his official capacity as Acting Administrator, U.S. Environmental Protection Agency, et al., Defendants. Memorandum in Support of United States Motion to Stay Judgment Pending Appeal and Request for Expedited Consideration

2 2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 2 of 21 TABLE OF CONTENTS Introduction... 1 Background... 3 Argument... 5 I. The Agencies are likely to succeed on the merits A. The Agencies complied with the APA B. The Court erred in granting a nationwide injunction II. The injunction harms the Agencies, a stay pending appeal will not harm Plaintiffs, and the public s interests favors a stay Conclusion i

3 2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 3 of 21 INTRODUCTION Last week this Court granted Plaintiffs motion for summary judgment and enjoined nationwide the challenged Applicability Rule. Order and Judgment, ECF Nos. 66 & 67. That rule sought to maintain the status quo of the Agencies uniform, nationwide, four-decades-old definition of waters of the United States for the Clean Water Act ( CWA ) that had preceded the litigation sparked by the Agencies promulgation of the 2015 Rule. By enjoining the Applicability Rule across the country, the Court created a patchwork scheme for defining the Act s reach. Because of the injunction, the 2015 Rule now applies in 26 states (plus the District of Columbia and a few territories). The 2015 Rule does not apply in the 24 states where it has been preliminarily enjoined including South Carolina, where this Court sits. As a result, the Agencies cannot now consistently determine whether a wetland that crosses the border between certain states falls within the Act s jurisdiction, nor can the Agencies evaluate similar kinds of wetlands located in adjacent states under the same standards. For example, in Virginia a wetland is analyzed under the 2015 rule. But in South or North Carolina it is analyzed under the Agencies pre-2015 regulatory regime. The Agencies have filed their notice of appeal from this Court s judgment. They will seek expedited relief in the Fourth Circuit. But in the meantime, this Court should stay its injunction pending that appeal for three reasons. First, the Agencies did not violate the Administrative Procedure Act (APA) in promulgating the Applicability Rule. They provided fair notice and comment, considered the public s comments including on whether the proposed rule should be finalized and the substantive impacts of doing so and then finalized a common-sense rule that provides a uniform definition of waters of the United States that can be applied nationwide for no more than two years while they consider what definition should apply long term. 1

4 2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 4 of 21 Second, the Court erred in permanently enjoining the rule nationwide. The Court failed to address the injunction factors that the Supreme Court has held must be addressed. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, (2010). Moreover, the Court lacks authority to enter a nationwide injunction where (1) plaintiffs have not established injury-in-fact, as required to support a nationwide injunction under Article III and equitable principles, and (2) such an injunction is inconsistent with the APA and the CWA s judicial-review provisions. The Court is not a court of national review. It should not have entered a nationwide judgment when briefing on the same issues is ongoing or pending in three other district courts. Finally, the injunction harms the Agencies and the public s interests. It blocks a rule that furthers the public s interests by providing (for a limited period, while a broader reconsideration and rulemaking process is ongoing) uniformity on the CWA s reach. And it does so without this Court having balanced the equities of allowing a 2015 Rule a rule that other district courts have held is likely substantively invalid for Constitutional and statutory reasons, results in irreparable harm, is subject to reconsideration, and may only temporarily be implemented pursuant to that injunction (though not in South Carolina) to be applied against those of allowing the Agencies the opportunity to correct the procedural deficiencies the Court found. The injunction also directly harms the Agencies by preventing them from determining the reach of the CWA. They cannot now issue permits in a consistent, uniform fashion nationwide, to the detriment of potential permittees and the public. In contrast, Plaintiffs generalized allegations of injury did not suffice. They do not identify particular waters that they would use during the stay that would fall under the definition of waters of the United States under the 2015 Rule, but not under the pre-2015 regime, and so are conceivably negatively impacted by agency action during that period. Plaintiffs declarations do not come close to 2

5 2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 5 of 21 showing the concrete-and-particularized, across-the-nation harm required to support a nationwide injunction. Where standing has not been established, as is the case here, a federal district court lacks jurisdiction to act. The Agencies respectfully ask this Court to grant their motion to stay the nationwide injunction and vacatur of the 2015 Rule pending appeal. Under Local Rule 6.01, the Agencies also respectfully ask this court to consider their stay motion on an expedited basis given the harms to the Agencies and public (discussed further below) that will flow from applying different rules in different parts of the country, and to render a decision before September 4th. If no decision is made by that date, the Agencies plan to seek relief from the Fourth Circuit. BACKGROUND The Agencies summary judgment memoranda detail the background of the Applicability Rule. See ECF Nos. 62-1, 65. In a nutshell, the Agencies promulgated the 2015 Rule, which revised the CWA s definition of waters of the United States. 1 That rule was immediately challenged in courts across the country. Those challenges led to some of those courts concluding the 2015 Rule is likely invalid, it creates irreparable harm, and issuing injunctions blocking the Rule in a shifting set of states. In response, earlier this year the Agencies promulgated the Applicability Rule. 83 Fed. Reg (Feb. 6, 2018). It maintains the status quo of the regulatory regime that applied nationwide before 2015 while litigation challenging the 2015 Rule is ongoing and the Agencies weigh potential future administrative actions. Right now, the 2015 Rule is preliminarily enjoined by two district courts across 24 states including South Carolina, North Carolina, and Georgia. A Texas district court is 1 Clean Water Rule: Definition of Waters of the United States, 80 Fed. Reg. 37,054 (June 29, 2015) ( 2015 Rule ). 3

6 2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 6 of 21 considering two motions to preliminarily enjoin the 2015 Rule. See Texas v. EPA, Case No. 3:15-cv-162 (S.D. Tex.); Am. Farm Bureau Fed n v. EPA, Case No. 3:15-cv-165 (S.D. Tex.). More states are seeking a preliminary injunction in an Ohio district court. See, e.g., States Supplemental Memorandum in Support of Preliminary Injunction, Ohio v. EPA, Case No. 2:15 cv (S.D. Ohio June 20, 2018) (brief filed by the States of Ohio, Michigan, and Tennessee in support of the states motion for a preliminary injunction against the 2015 Rule). Against this backdrop, the Court entered a permanent nationwide injunction against the Applicability Rule. Aug. 16, 2018 Order ( Order ), ECF No. 66. The Court held that the Agencies violated the APA by refusing to solicit or consider substantive comments on the change in the regulatory definition of waters of the United States. Id. at Because the Court saw no principled reason why the [Applicability] Rule should be enjoined in some states but not others, id. at 16, it enjoined the rule nationwide. See id. at As the United States explained and depicted in its summary judgment brief, the Court s injunction of the Applicability Rule results in application of the 2015 Rule in the 26 states where it is not enjoined but only so long as none of the other district courts in which motions to enjoin the 2015 Rule remain pending acts on those motions. See U.S. Memo at 11 (map showing scope of extant and pending injunctions). Those states do not include South Carolina, North Carolina, or Georgia, the focus of Plaintiffs members declarations 2 and where the 2015 Rule is already enjoined. Thus, although a nationwide injunction might lead to nationwide uniformity in some circumstances, the injunction imposed throughout here has the opposite effect, creating a patchwork regulatory regime under the CWA. 2 See generally Plaintiffs Memo. in Support of Mot. for Summary Judgment (ECF No. 60) at Exhibits

7 2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 7 of 21 ARGUMENT Four factors are relevant in determining whether to grant a stay pending appeal: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Nken v. Holder, 556 U.S. 418, 426 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)); accord, e.g., Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970). Here, those factors weigh in favor of a stay pending appeal. I. The Agencies are likely to succeed on the merits. A. The Agencies complied with the APA. The Court faulted the Agencies for refusing (1) to solicit public comments on the merits of suspending the 2015 Rule and (2) to consider the substantive implications of suspending the 2015 Rule. Order at 6. It therefore held that the Agencies failed to comply with the APA. Id. Both grounds for the Court s decision are wrong. To begin, the APA does not require the Agencies to request comment on or perform the analysis that this Court preferred. The APA only requires agencies that intend to promulgate substantive rules to provide [g]eneral notice of the proposed rulemaking through publication in the Federal Register, with reference to the legal authority under which the rule is proposed, and either the terms or substance of the proposed rule or a description of the subjects and issues involved. 5 U.S.C. 553(b); Chrysler Corp. v. Brown, 441 U.S. 281, 313 & n.44 (1979). Agencies must also give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. 5 U.S.C. 553(c). An agency s obligation is to identify and comment on only the relevant and significant issues raised. S.C. ex rel. Tindal v. Block, 717 F.2d 874,

8 2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 8 of 21 (4th Cir. 1983). Though courts are charged with... ensuring that agencies comply with the outline of minimum essential rights and procedures set out in the APA, they may not require procedures beyond those specified in the APA. Chrysler Corp., 441 U.S. at 313 (quoting H.R. Rep. No (1946), and citing Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 549 n.21 (1978)). The Agencies notice of proposed rulemaking provided a brief, but thorough and descriptive, notice of the proposed agency action. It explained that the Agencies contemplated adding to the 2015 Rule an applicability date of two years from any final action on the proposal. See 82 Fed. Reg. 55,542, 55,542 (Nov. 22, 2017). The notice identified the uncertainty and inconsistency generated by litigation and the ongoing reconsideration process as reasons for that action. Id. The Agencies accordingly solicit[ed] comment as to whether it is desirable and appropriate to add an applicability date to the [2015] Rule, whether the time period should be shorter or longer than the proposed two years, and whether adding the applicability date contributes to regulatory certainty, a central purpose of the proposed rule. Id. at 55,544. The Agencies received over 700 unique comments in response to their request for comments. 3 The Agencies described, discussed, and responded at length to those comments. See 83 Fed. Reg. 5200, (Feb. 6, 2018). In doing so, the Agencies addressed a wide range of topics, including: their statutory authority to adopt an applicability date; whether the Applicability Rule would upset ongoing implementation of the CWA; whether the Applicability Rule would preserve a status quo, and, if so, whether doing so would benefit the public; whether the existence of piecemeal, inconsistent rules in different locations could be confusing and lead to administrative difficulties or hardships on the public; whether regulatory certainty would be 3 See Certified Index to Administrative Record, Dkt. #

9 2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 9 of 21 advanced by the Applicability Rule; whether adopting the rule would create a regulatory gap; and whether removing waters from federal jurisdiction would mean that waters would not be protected. Id. at No more is required. The Court faulted the Agencies for not assessing the substantive implications of the 2015 Rule or comparing the merits of that Rule with those of the 1980s regulations. Order at 6. This overlooks key parts of the proposed and final rulemakings. In the proposal s Public Comments section, the Agencies invited comment as to whether it is desirable and appropriate to add an applicability date to the 2015 Rule. 82 Fed. Reg. at 55,544 (emphasis added). This inquiry specifically included comments on whether adding the applicability date contributes to regulatory certainty. Id. Thus, the Agencies did request comment on whether immediate implementation of the 2015 Rule, or maintenance of preexisting regulatory status quo, was the comparatively better policy. 80 Fed. Reg. 37,054, 37,054 (June 29, 2015). And the Agencies responded to those comments. The final rule explains why adding an applicability date will increase regulatory certainty during this interim period and why it will not upset ongoing implementation of the CWA, among other discussions. 83 Fed. Reg. at The Agencies directly addressed the contention that they must analyze the Applicability Date as if it were a permanent repeal of the 2015 Rule. Id. at And the Agencies also responded to comments claiming that postponing application of the 2015 Rule for two years would have negative impacts including lesser protection of water resources. 83 Fed. Reg. at (Applicability Rule had no costs and unquantifiable benefits); Consideration of Potential Economic Impacts for the Final [Applicability] Rule, EPA-HQ-OW (Jan. 30, 2018) (Attach. A to U.S. Reply). 7

10 2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 10 of 21 The Court also disregarded the Agencies concurrent undertaking of a fulsome, substantive reconsideration of the 2015 Rule (pursuant to which they have already proposed one potential action for public consideration). See 82 Fed. Reg. 34,899, 34,899 (July 27, 2017). The public, including Plaintiffs, will have the opportunity to have their views of the 2015 Rule s substantive definition and protections heard and addressed in the context of that ongoing process. Id. at 34,903; 83 Fed. Reg. at And the Agencies explained this in proposing the Applicability Rule: they will address substantive issues related to the [2015] Rule[] in the [separate] notice and comment rulemaking to consider adopting a revised definition of waters of the United States. 82 Fed. Reg. at 55,545. Addressing such issues in a separate rulemaking is entirely reasonable. The relevant issue here whether to defer applicability of the 2015 Rule given the shifting legal landscape and ongoing reconsideration can reasonably be separated from the issue of how waters of the United States should be defined long-term. Thus, there was nothing unlawful about the Agencies pragmatic decision to decline to undertake, for the moment, a full-scale policy analysis of the 2015 Rule in the context of their narrow proposal to add an applicability date. Indeed, the D.C. Circuit has acknowledged the propriety of this type of process. See Clean Air Council v. Pruitt, 862 F.3d 1, 4, 14 (D.C. Cir. 2017). The Agencies have the discretion to define the scope of the rulemakings they pursue, and they have reasonably divided the process here into a temporary Applicability Rule followed by a potential permanent repeal of the 2015 Rule. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, (2009); Motor Vehicle Mfrs. Ass n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (under the APA, agencies need only examine relevant data and articulate a satisfactory explanation for the action taken). 8

11 2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 11 of 21 The Court s decision relied heavily on North Carolina Growers Ass n v. United Farm Workers, 702 F.3d 755 (4th Cir. 2012). Order at But there are critical differences between that case and the situation here. First, the agency there did not face a splintered map of limited rule application. The regulations that the Labor Department attempted to suspend had not been stayed or enjoined in any state in North Carolina Growers; they were fully in effect when suspended. In contrast, the Agencies here had to address that problem, and it was a central justification for the Applicability Rule. 82 Fed. Reg. at 55,544. Second, the regulatory suspension in North Carolina Growers would have disturbed industry expectations, undermining hiring already done by many agricultural employers rely[ing] on the terms of the 2008 [wage] regulations. 702 F.3d at 760. Here, in contrast, the Applicability Rule does not disturb any reasonable expectations formed in reliance on the 2015 Rule, as (prior to the Court s ruling here) that Rule was only in effect for 42 days in 2015, and only in 37 states. U.S. Memo at 6. No such expectations could possibly have survived the injunctions against the rule over the past three years. Third, in North Carolina Growers, the court found that the topics excluded from comment were integral to the proposed agency action and the conditions that such action sought to alleviate. 702 F.3d at In other words, the agency s own reasoning for the suspension of the regulations made the merits of those regulations relevant to its decision. It is therefore entirely unremarkable that the agency was held to have erred in restricting the scope of its request for comments in North Carolina Growers. Here, however, the Agencies invited comment on all information relevant to the limited question before them. And it was reasonable to disclaim an examination of the relative merits of the 2015 Rule other than what would best 9

12 2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 12 of 21 promote consistency, predictability, and uniformity for the foreseeable future. Thus, this case is fundamentally different from North Carolina Growers. The Court also cited a number of other cases where courts have found fault in rules delaying previous rules, but in all those cases, the agency undertook the delay action without a notice-and-comment rulemaking. See U.S. Memo. at 15 & n.10; U.S. Reply at 5. For example, in Children s Hospital of the King s Daughters, Inc. v. Azar, 896 F.3d 615, (4th Cir. 2018) (cited at Order at 11 n.2), the agency had not followed notice-and-comment procedures. In Clean Air Council v. Pruitt, 862 F.3d at 1, the D.C. Circuit overturned a stay issued without notice or comment. 4 Here, in contrast, the Agencies conducted a notice-and-comment rulemaking in which the public was invited to comment on whether the Agencies should postpone application of the 2015 Rule, among other issues. 82 Fed. Reg. at 55,544. The Agencies thereby invited a broad range of comments relevant to why, or why not, continuing to apply the pre-2015 regulatory regime for an additional two years was the best course of action in light of the circumstances. Thus, the Agencies provided the public a meaningful opportunity to comment, not an illusory one as this Court concluded. Slip Op. at See also Nat. Res. Def. Council v. Nat l Highway Traffic Safety Admin., 894 F.3d 95, 113 (2d Cir. 2018) (agency violated the APA when it stayed rule without undertaking notice and comment first); Open Cmtys. All. v. Carson, 286 F. Supp. 3d 148, 152 (D.D.C. 2017) (enjoining action taken without notice and comment ); Pennsylvania v. Trump, 281 F. Supp. 3d 553, 571 (E.D. Pa. 2017) (agencies attempted to bypass notice-and-comment rulemaking ); Nat l Venture Capital Ass n v. Duke, 291 F. Supp. 3d 5, 8 (D.D.C. 2017) (vacating where delay of prior rulemaking was issued without providing notice or soliciting comment from the public ); California v. U.S. Bureau of Land Mgmt., 277 F. Supp. 3d 1106, 1120 (N.D. Cal. 2017) (agency violated APA by effectively repealing...without engaging in the process for obtaining comment from the public ); Becerra v. U.S. Dep t of Interior, 276 F. Supp. 3d 953, 966 (N.D. Cal. 2016) (agency fail[ed] to give the public an opportunity to weigh in with comments ). 10

13 2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 13 of 21 B. The Court erred in granting a nationwide injunction. There are two central problems with the nationwide injunction blocking the Applicability Rule: (1) the Court did not reference, let alone analyze, the four factors that the Supreme Court requires courts to examine before entering a permanent injunction, and (2) the nationwide injunction both goes well beyond remedying plaintiffs harm and exceeds structural limitations on the court s remedial authority. First, the Supreme Court has established that a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. Monsanto, 561 U.S. at (emphasis added) (quoting ebay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)). The plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. Id. at And [i]t is not enough for a court considering a request for injunctive relief to ask whether there is a good reason why an injunction should not issue; rather, a court must determine that an injunction should issue under the traditional four-factor test. Id. at 158. Here, the Court neither cited nor discussed two factors that are relevant here: the balance of hardships and the public interest. Instead, it touched only on plaintiffs alleged harms. Order at This defect demonstrates that the Agencies are likely to prevail on the merits of the remedy issue at least, as required by the Supreme Court s holding in Monsanto. Second, the Court should not have entered a nationwide injunction against the Applicability Rule. Nationwide injunctions against federal agencies are relatively new and legally untested. New York v. Pruitt, No. 18-cv-1030, 2018 WL , at *5 (S.D.N.Y. May 11

14 2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 14 of 21 29, 2018) (order denying motion to transfer different challenge to Applicability Rule); see generally Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harvard L. Rev. 417 (2017). The nationwide injunction here contravenes fundamental Article III and equitable principles, and it thwarts the development of important policies that the Supreme Court has recognized underlie our judicial system. Article III limits courts to awarding only the relief necessary to remedy injuries to the plaintiffs in the case before it. As the Supreme Court has explained, the remedy must be limited to the inadequacy that produced the injury in fact that the plaintiff has established. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 (2006) (internal quotation marks and citation omitted). The actual-injury requirement would hardly serve [its] purpose... if once a plaintiff demonstrated harm from one particular inadequacy in government administration, the court were authorized to remedy all inadequacies in that administration. Lewis v. Casey, 518 U.S. 343, 357 (1996). Consistent with this Article III limitation, equitable relief traditionally has been limited to determining the rights of the parties before the court. See U.S. Dep t of Def. v. Meinhold, 510 U.S. 939 (1993) (staying categorical injunction against federal policy to the extent it reached beyond the parties to the case); Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, (9th Cir. 2011) (nationwide injunction was too broad where an injunction preventing the agency from enforcing the regulation against plaintiffs was sufficient to afford relief); see also 5 U.S.C. 703 (providing that, in the absence of a special statutory review provision, the proper form of proceeding under the APA is a suit for declaratory or injunctive relief). For these reasons, relief must be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs. Madsen v. Women s Health Ctr., Inc., 512 U.S. 753, 765 (1994) (internal quotation marks and citation omitted). 12

15 2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 15 of 21 Here, the Court exceeded its authority by enjoining the Applicability Rule nationwide. Though Plaintiffs allege that they use and enjoy certain regional water bodies in the southeastern United States (such as Pocosins and Carolina Bays) that they claim are better protected by the 2015 Rule, Pl. Memo at 2, 4, 19, & 22, there are over two dozen states where the injunction applies that Plaintiffs do not even mention in their declarations. And there are a number of other states that are mentioned in passing, without any real effort to establish injury in fact an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural in those states, as required under Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks and citations omitted). See, e.g., Order at 17 (quoting declarant who alleged that he has kayaked in streams from Georgia to Pennsylvania, and regularly paddles in Maryland and Virginia ); id. (quoting Irvin declaration as stating that he fishes in Montana, Wyoming, Colorado, New Mexico, South Carolina, North Carolina, Tennessee, New York, Vermont, Utah, California, and Washington ). That a handful of Plaintiffs members claim to use waters around the country 5 even more plainly fails to meet the concrete and particularized requirement. See Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009). Plaintiffs also fail to connect the dots between waters that their members use which they fail to identify by name and any concrete possibility that those unnamed waters would be categorized differently under the 2015 Rule than under the pre-2015 regulatory regime. Rather than addressing these Article III standing issues, this Court enjoined the rule nationwide because it saw no principled reason why the [Applicability] Rule should be enjoined in some states but not others. Order at 16. But this is quite similar to the district court s error in 5 E.g. Plaintiffs Motion for Summary Judgment, Ex ; see also id. at Ex ( Our members use and enjoy water bodies throughout the country. ). 13

16 2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 16 of 21 Monsanto, where the Supreme Court criticized the court for asking whether there is a good reason why an injunction should not issue. 561 U.S. at 158. The Court s error in granting relief broader than the harms articulated by Plaintiffs members is compounded here because it also interferes with the development of the law in the federal courts, whereby different courts will look at the same issue and sometimes reach conflicting results. See Va. Soc y for Human Life, Inc. v. FEC, 263 F.3d 379, 393 (4th Cir. 2001) (rejecting nationwide injunction because, inter alia, it preclud[ed] other circuits from ruling ), overruled on other grounds by The Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544 (4th Cir. 2012). The Supreme Court has made this point in holding that nonmutual collateral estoppel should not apply against the federal government because a contrary rule would substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue. Allowing only one final adjudication would deprive this Court of the benefit it receives from permitting several courts of appeals to explore a difficult question before this Court grants certiorari. United States v. Mendoza, 464 U.S. 154, 160 (1984); see also id. at 163 (explaining that the Court s preferred approach will better allow thorough development of legal doctrine by allowing litigation in multiple forums ). The nationwide injunction here introduces the same practical difficulties that the Supreme Court in Mendoza sought to avoid. Allowing nationwide injunctions in the context of the CWA is particularly problematic because. Although Congress has provided for nationwide review of some CWA actions in one court, that does not include rules defining the waters of the United States. National Association of Manufacturers v. Department of Defense, 138 S. Ct. 617 (2018). A single court of appeals can properly issue a nationwide stay of a rule that falls within the purview of 33 U.S.C. 1369(b)(1) (enumerating categories of agency action for which review lies directly 14

17 2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 17 of 21 and exclusively in the federal courts of appeals) under that provision and 28 U.S.C. 2112(a)(3) because Congress has thereby authorized consolidated review. 138 S. Ct. at But for actions that do not fit within CWA Section 1369(b)(1), district courts cannot seize the broader authority that Congress has declined to extend to the courts of appeals. Instead, those that seek to challenge agency actions like the Applicability Rule and the 2015 Rule must face the risk of conflicting outcomes in the district courts. Id. at 634 (Congress carefully enumerated the seven categories of EPA action for which it wanted immediate circuit-court review and relegated the rest to the jurisdiction of the federal district courts ). Notably, this Court is the first district court to enter a nationwide injunction against either the 2015 Rule or the Applicability Rule. The District of North Dakota and the Southern District of Georgia both refused to enjoin the 2015 Rule nationwide, limiting the preliminary injunctions they issued to the plaintiff states. See Georgia v. Pruitt, No. 2:15-cv LGW-RSB, Dkt. #174 (S.D. Ga. June 8, 2018) (Ex. 3 to U.S. Memo. in Support of Cross-Motion for Summary Judgment); North Dakota et al. v. EPA, Order Limiting Scope of Preliminary Injunction, 3:15- cv-59, Doc. #79 at 4 (D.N.D. 2015) (Attach. D to U.S. Reply in Support of Mot. for Summary Judgment). This Court erred by going much farther. Recent appellate decisions cast additional doubt on the Court s approach. The Ninth Circuit recently noted that nationwide injunctions might be necessary in exceptional cases to give Plaintiffs a full expression of their rights. City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 2018 WL at *13 (9th Cir. Aug. 1, 2018). But the court held that the district court had not sufficiently justified a nationwide injunction and remanded for a more searching inquiry into whether this case justifies the breadth of the injunction imposed. Id. That searching inquiry is entirely missing here. And while the Court pointed to the nationwide 15

18 2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 18 of 21 injunction granted by a Seventh Circuit panel in City of Chicago v. Sessions, 888 F.3d 272, 288 (7th Cir. 2018), as support for the nationwide relief granted here, see Order at 18 n.4, the Seventh Circuit has granted the government s petition for rehearing en banc on the propriety of nationwide injunctions, and limited the injunction to Chicago pending that rehearing. See Order, City of Chicago v. Sessions, No , Dkt. #134 (7th Cir. June 26, 2018) (Ex. A). Finally, the Court s nationwide injunction cannot be justified by noting that plaintiffs have brought a facial challenge to the Applicability Rule. Order at 16. If anything, that underscores the problem with basing a nationwide injunction on conclusory allegations of harm that are not concrete and particularized. In Summers, the Supreme Court held that it becomes more difficult to establish standing when a plaintiff seeks to bring a facial challenge to a regulation. See 555 U.S. at Thus, the facial nature of plaintiffs challenge and their conclusory allegations in support thereof should make it harder, not easier, to justify the imposition of a nationwide injunction here. II. The injunction harms the Agencies, a stay pending appeal will not harm Plaintiffs, and the public s interests favors a stay. Because the balance of harms and the public interest inquiries are closely intertwined here, the Agencies address them together. Preliminarily, this Court erred by failing to balance the equities of creating an uncertain, patchwork, ever changing regulatory regime against those of permitting the Agencies to maintain national uniformity and consistency while having the opportunity to correct the procedural deficiencies the Court found. Also relevant it that the Agencies will be irreparably harmed absent a stay because the enjoined rule furthers the public interest. As explained above, the Agencies promulgated the Applicability Rule to temporarily maintain uniformity in their application of CWA permitting 16

19 2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 19 of 21 requirements to waters of the United States while the Agencies decide whether to revise that definition. The Agencies amply explained in the Applicability Rule why this common-sense pause and return to a regulatory regime that has been in place for nearly 40 years makes more sense than the patchwork regulatory scheme triggered by the injunction. For instance, [h]aving different regulatory regimes in effect throughout the country would be complicated and inefficient for both the public and the agencies. 83 Fed. Reg. at Just as a single state suffers a form of irreparable injury [a]ny time [it] is enjoined by a court from effectuating statutes enacted by representatives of its people, Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers), the Agencies are irreparably injured when the district court enjoins their rule. See also O Centro Espirita Beneficiente Uniao de Vegetal v. Ashcroft, 314 F.3d 463, 467 (10th Cir. 2002), aff d, 342 F.3d 1170 (10th Cir. 2003). The injunction also harms the Agencies in their day-to-day implementation of the CWA. It impairs the orderly and rational processing of permits and determinations whether a particular water is a water of the United States. The Agencies will have to expend significant resources to inform regional and district staff, State partners, and the public sufficiently so that the 2015 Rule could be implemented in those States in which it is not enjoined. Moreover, it will be burdensome for the Agencies to implement the shifting patchwork of inconsistent regulation created by the interplay between this Court s order enjoining and vacating the Applicability Rule and the preliminary injunctions of the 2015 Rule. This is particularly true because water resources often cross, or run along, state borders, meaning that the Agencies will be confronted with confusing jurisdictional questions. In some instances, the Agencies may be forced to apply different regulatory tests within the context of one determination. For example, Ohio and Indiana are bordering states; in light of the Court s 17

20 2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 20 of 21 order, the 2015 Rule now applies in Ohio, but it is enjoined in Indiana. If a jurisdictional determination is requested for a water body in Ohio requiring a case-specific significant nexus determination and that water body is in a single point of entry watershed that extends into Indiana, the difficult question arises as to whether waters in the same watershed, but subject to different regulatory regimes, are similarly situated under the 2015 Rule. The burden imposed by the need for the Agencies to undertake these sorts of difficult jurisdictional analyses as a result of the application of different rules in different states is compounded by the fact that many Corps regulatory offices implement the regulatory program in multiple states. It is also compounded by the volume of jurisdictional determinations and permit decisions currently pending before the Agencies; the Agencies are aware of more than 5,000 pending requests for jurisdictional determinations and more than 11,000 pending requests for permit actions. Thus, the burdens associated with applying different jurisdictional analyses in different states, and the Agencies concern that the analysis applicable to some states may change if additional injunctions are granted (potentially requiring the Agencies to redo an ongoing jurisdictional determination or permit review), are not insubstantial. In contrast, a stay pending an expedited appeal would not substantially harm Plaintiffs. They made no showing that, pending an expedited appeal, (1) a plaintiff will use a particular water that is a water of the United States under the 2015 Rule but not under the pre-2015 regime, and (2) the Agencies will approve an action affecting that water that they would not have approved under the 2015 Rule. Even if Plaintiffs claimed that they were sure to use such a water somewhere and sometime, that could not justify the injunction here. Cf. Summers, 555 U.S. at 495 (noting that [t]here may be a chance, but... hardly a likelihood, that [the declarant s] 18

21 2:18-cv DCN Date Filed 08/23/18 Entry Number 74-1 Page 21 of 21 wanderings will bring him to a parcel about to be affected by a project unlawfully subject to the regulations, but that is insufficient to establish injury-in-fact). CONCLUSION The Court should stay its judgment enjoining and vacating the Applicability Rule pending appeal. The Agencies respectfully request that the Court do so before September 4th. Date: August 23, 2018 Respectfully submitted, SHERRI A. LYDON UNITED STATES ATTORNEY By: s/barbara M. Bowens BARBARA M. BOWENS (#4004) Assistant United States Attorney 1441 Main Street, Suite 500 Columbia, SC Phone: (803) Barbara.Bowens@usdoj.gov JEFFREY H. WOOD Acting Assistant Attorney General JONATHAN D. BRIGHTBILL Deputy Assistant Attorney General U.S. Department of Justice Environment and Natural Resources Division AMANDA SHAFER BERMAN ANDREW J. DOYLE U.S. Department of Justice Environment and Natural Resources Division Environmental Defense Section P.O. Box 7611 Washington, D.C T: (202) amanda.berman@usdoj.gov Counsel for Defendants 19