The State Of Ohio et al v. United States Environmental Protection Agency et al
Filing
126
OPINION AND ORDER denying ECF No. 103 Plaintiff States Ohio and Tennessees Motion for Summary Judgment; granting 112 Defendant-Intervenors National Wildlife Federation and National Resources Defense Council Inc.s Cross Motion for Summary Judgment. This case is DISMISSED. Signed by Judge Edmund A. Sargus on 3/23/2022. (cmw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
THE STATE OF OHIO, et al.,
Plaintiffs,
Case No. 2:15-cv-2467
v.
JUDGE EDMUND A. SARGUS, JR.
U.S. ENVIRONMENTAL PROTECTION
AGENCY, et al.,
Magistrate Judge Kimberly A. Jolson
Defendants.
NATURAL RESOURCES DEFENSE
COUNCIL, et al.,
Defendant-Intervenors.
OPINION AND ORDER
This matter is before the Court on Plaintiff States Ohio and Tennessee’s Motion for
Summary Judgment (ECF No. 103) and Defendant-Intervenors National Wildlife Federation and
National Resources Defense Council Inc.’s Cross Motion for Summary Judgment (ECF No. 112).
For the following reasons, Plaintiffs’ motion is DENIED, Defendant-Intervenors’ motion is
GRANTED, and the case is DISMISSED as moot.
I.
BACKGROUND
The Clean Water Act established regulatory control over “navigable waters” and defined
navigable waters as “waters of the United States.” 33 U.S.C. §§ 1344, 1362(7). In this case,
Plaintiff States Ohio and Tennessee (together, the “States”) challenge Defendants United States
Environmental Protection Agency and the United States Army Corps of Engineers’ (together, the
“Agencies”) 2015 Clean Water Rule interpreting the phrase “waters of the United States” (the
“2015 Rule”). 80 Fed. Reg. 37,054 (June 29, 2015).
1
A. Administrative History
The 2015 Rule was promulgated on June 29, 2015. Three years later, in 2018, the Agencies
suspended enforcement of the 2015 Rule (“2018 Suspension Rule”). The same year, a South
Carolina district court also enjoined the 2018 Suspension Rule. See S.C. Coastal Conservation
League v. Pruitt, 318 F. Supp. 3d 959 (D.S.C. 2018). In December 2019, the Agencies formally
repealed the 2015 Rule (“2019 Repeal Rule”). In June 2020, the Agencies replaced the 2015 Rule
with the Navigable Waters Protection Rule (“2020 Protection Rule”). The 2020 Protection Rule
was vacated by district courts in 2021. 1
On December 7, 2021, the Agencies issued a proposed rule called the Revised Definition
of “Waters of the United States” (“2021 Proposed Rule”). 86 Fed. Reg. 69, 372 (Dec. 7, 2021).
The 2021 Proposed Rule seeks to “put back into place the pre-2015 definition of ‘waters of the
United States.’” Id. The notice and comment period ended on February 7, 2022, and the Agencies
represent that they are working on the final rule. In the meantime, the Agencies interpret “waters
of the United States” “consistent with the pre-2015 regulatory regime until further notice.” 2
B. Procedural History
The States filed suit on June 29, 2015 to enjoin the 2015 Rule. The States contend that the
2015 Rule improperly expanded the definition of “waters of the United States,” giving the
Agencies the power to regulate more waters than permitted by Congress, the Supreme Court, and
the Tenth Amendment to the Constitution. The States also argue the 2015 Rule violated the
Administrative Procedure Act. (See generally Am. Compl., ECF No. 20.)
See Navajo Nation v. Regan, No. 2:20-cv-602, -- F. Supp. 3d --, 2021 WL 4430466, at *5 (D.N.M. Sept. 27, 2021);
Pasqua Yaqui Tribe v. EPA, No. 4:20-cv-266, --- F. Supp. 3d ---, 2021 WL 3855977, at *6 (D. Ariz. Aug. 30, 2021).
2
See “Current Implementation of Waters of the United States,” EPA, https://www.epa.gov/wotus/currentimplementation-waters-united-states (last visited March 14, 2022).
1
2
The States filed a motion for preliminary injunction in 2018 to enjoin enforcement of the
2015 Rule. (ECF No. 39.) The Court denied the motion. (ECF No. 86.) The States appealed the
decision. (ECF No. 90.) On August 5, 2020, the Sixth Circuit ruled that the appeal was moot
because there was “no reasonable possibility that a preliminary injunction would have any practical
effect upon the States’ asserted right to be free from the 2015 Rule’s enforcement during the
pendency of their case.” Ohio v. EPA, 969 F.3d 306, 310 (6th Cir. 2020). The Sixth Circuit found
that the case as a whole, however, was not moot. Id.
On August 27, 2021, the States filed a motion for summary judgment. (ECF No. 103.)
Defendant-Intervenors National Wildlife Federation and National Resources Defense Council Inc.
(together, the “Defendant-Intervenors”) subsequently filed a cross motion for summary judgment
arguing, in part, that the case is moot. (ECF No. 112.) The parties filed additional briefs on
mootness. (ECF Nos. 121–23.)
II.
STANDARD
A. Mootness
Article III of the United States Constitution limits a federal court’s exercise of judicial
power to actual, ongoing “Cases” or “Controversies.” U.S. Const. art. III § 2 cl. 1. A plaintiff has
an actual case or controversy if he or she suffered, or is threatened with, an “injury in fact” that is
“fairly traceable to the challenged action of the defendant” and “likely to be redressed by a
favorable judicial decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992); Friends of
the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000). The case-orcontroversy requirement subsists throughout all stages of the litigation. U.S. v. Juvenile Male, 564
U.S. 932, 936 (2011) (“It is a basic principle of Article III that a justiciable case or controversy
must remain extant at all stages of review, not merely at the time the complaint is filed.”) (internal
3
quotations and citation omitted). If circumstances change so that there is no longer an actual case
or controversy, the court must dismiss the case as moot. Powell v. McCormack, 395 U.S. 486, 496
(1969) (noting that a case is moot when the parties no longer have “a legally cognizable interest in
the outcome”); Lewis v. Continental Bank Corp., 494 U.S. 472, 478 (1990) (observing “[u]nder
Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or
controversies.”)
Generally, “voluntary cessation of allegedly illegal conduct does not deprive the tribunal
of power to hear and determine the case, i.e., does not make the case moot.” A. Philip Randolph
Inst. v. Husted, 838 F.3d 699, 712 (6th Cir. 2016) (quoting United States v. W. T. Grant Co., 345
U.S. 629, 632 (1953)); City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n. 1
(2001) (“a party should not be able to evade judicial review, or to defeat a judgment, by temporarily
altering questionable behavior.”). However, voluntary cessation of the challenged conduct may
moot the case if the defendant demonstrates that “that there is no reasonable expectation that the
wrong will be repeated.” Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir. 1990). In other words, if
“the allegedly wrongful behavior could not reasonably be expected to recur.” A. Philip Randolph
Inst., 838 F.3d at 712 (citing Friends of the Earth, Inc., 528 U.S. at 190).
B. Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine issue as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The Court may therefore grant a motion for summary judgment if the nonmoving party who has
the burden of proof at trial fails to make a showing sufficient to establish the existence of an
element that is essential to that party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
4
The “party seeking summary judgment always bears the initial responsibility of informing
the district court of the basis for its motion and identifying those portions” of the record which
demonstrate “the absence of a genuine issue of material fact.” Id. at 323. The burden then shifts to
the nonmoving party who “must set forth specific facts showing that there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56(e)).
“The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in
his favor.” Id. at 255 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158–59 (1970)).
III.
ANALYSIS
Before examining the merits of the case, the Court will first determine whether the case is
moot. North Carolina v. Rice, 404 U.S. 244, 246 (1971) (“Mootness is a jurisdictional question
[and] the Court is not empowered to decide moot questions or abstract propositions…”).
The Sixth Circuit found that the case was not moot in August 2020, stating:
Whether a case is moot because of the defendant’s voluntary cessation of the
challenged conduct depends on whether that conduct can “reasonably be expected
to recur”—period. Friends of the Earth, 528 U.S. at 189. That does not mean the
case remains live if the challenged conduct might recur at any time in the future, no
matter how distant. What we cannot foresee, we cannot reasonably expect. Thus,
that the conduct must be “reasonably” likely to recur means that there must be a
fair prospect that the conduct will recur in the foreseeable future. That fair prospect
exists here: given the recent proliferation of nationwide injunctions and the
pendency of 15 cases challenging the Repeal or Protection Rules, we cannot
exclude the possibility that, as those cases move forward—and by the orders of two
judges or even one—the 2015 Rule might again take effect nationwide. Indeed, that
is presumably why the plaintiffs in many of those cases are litigating them; and that
eventuality would violate what the States say are their rights under the law. This
case as a whole, therefore, remains a live one.
Ohio v. EPA, 969 F.3d 306, 310 (6th Cir. 2020).
The Agencies and Defendant-Intervenors argue that circumstances have changed since
August 2020 and the case is now moot. In support, they contend that the 2015 Rule was repealed
by the 2019 Repeal Rule, superseded by the 2020 Protection Rule, and will be superseded again
5
by the 2021 Proposed Rule. Furthermore, the litigation surrounding the 2019 Repeal Rule has been
dismissed or stayed and there is no reasonable expectation that a court will overturn the 2019
Repeal Rule before the 2021 Proposed Rule is promulgated. (ECF No. 111 at 14–17.)
The States respond that the case is not moot because “the only thing restraining the 2015
Rule is the 2019 Repeal,” which “continues to face significant danger” in ongoing litigation. (ECF
No. 116 at 22.) The States further contend that the 2021 Proposed Rule will likely face litigation
which could result in the 2015 Rule’s reimplementation. (ECF No. 125 at 4.) The Court disagrees.
This case is moot because enforcement of the 2015 Rule is not “reasonably. . .expected to
recur.” Friends of the Earth, 528 U.S. at 189. It well-established that courts “can neither declare
unconstitutional nor enjoin the enforcement of a provision that is no longer in effect.” Brandywine,
Inc. v. City of Richmond, 359 F.3d 830, 836 (6th Cir. 2004). Furthermore, if a government body
“self-corrects” its allegedly illegal conduct, there is “a secure foundation for a dismissal based on
mootness so long as [the correction] appears genuine.” Mosley, 920 F.2d at 415. In the last seven
years, the 2015 Rule has been suspended by the 2018 Suspension Rule, repealed by the 2019
Repeal Rule, superseded by the 2020 Protection Rule, and will likely be superseded again by the
2021 Proposed Rule. This Court does not have jurisdiction to enjoin a rule that has not been in
effect for three years and that the Agencies have replaced at least twice. To do so would be
tantamount to issuing an advisory opinion.
Furthermore, Defendants represent (and the States do not dispute) that every lawsuit
challenging the 2019 Repeal Rule and 2020 Protection Rule has been dismissed or stayed. (See
ECF No. 122 at 4, listing cases.) When the Sixth Circuit issued the opinion in August 2020, it
based the decision that the case was live on the fact that there were 15 active cases challenging the
2019 Repeal Rule and the 2020 Protection Rule. At that point, any one of the 15 cases could have
6
vacated the 2019 Repeal Rule and thus resurrected the 2015 Rule. Now, a year and a half later,
most of those cases have been dismissed and the remaining cases are all stayed in anticipation of
the 2021 Proposed Rule. It is not “foreseeable” or “reasonably expected” that a district court will
lift its stay and vacate the 2019 Repeal Rule when that decision would be promptly nullified by
the 2021 Proposed Rule. See Ohio v. EPA, 969 F.3d at 310. Even if a district court vacates the
2019 Repeal Rule, the 2021 Proposed Rule will interpret “waters of the United States” consistent
with the pre-2015 definition, which is what the States desire in this case. Finally, the States’
argument that the 2021 Proposed Rule may face litigation that could lead to the 2015 Rule’s
resurrection is speculative and not “foreseeable.” Id.
The States’ challenge to the 2015 Rule is rendered moot because the rule cannot
“reasonably be expected to recur.” See Friends of the Earth, Inc., 528 U.S. at 190; Mich. State
Chamber of Com. v. Austin, 788 F.2d 1178, 1182 (6th Cir. 1986) (“Even where [standing]
requirements are satisfied at inception a case may be rendered moot by changing circumstances
during the course of the litigation.”). The Court need not address the merits of the case because
“justiciability is lost and the action must be dismissed.” See id. (citing Weinstein v. Bradford, 423
U.S. 147, 149 (1975)).
IV.
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion (ECF No. 103) is DENIED, DefendantIntervenors’ motion is GRANTED (ECF No. 112), and the case is DISMISSED as moot. The
Clerk is directed to close the case.
IT IS SO ORDERED.
3/23/2022
DATE
s/Edmund A. Sargus, Jr.
EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?