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South Carolina Coastal Conservation League v. Pruitt

United States District Court, D. South Carolina, Charleston Division

May 11, 2018

SOUTH CAROLINA COASTAL CONSERVATION LEAGUE, CHARLESTON WATERKEEPER, AMERICAN RIVERS, CHATTAHOOCHEE RIVERKEEPER, CLEAN WATER ACTION, DEFENDERS OF WILDLIFE, FRIENDS OF THE RAPPAHANNOCK, NORTH CAROLINA COASTAL FEDERATION, and NORTH CAROLINA WILDLIFE FEDERATION Plaintiffs,
v.
E. SCOTT PRUITT, as Administrator of the United States Environmental Protection Agency; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; R.D. JAMES, as Assistant Secretary of the Army for Works; and UNITED STATES ARMY CORPS OF ENGINEERS Defendants.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE

         This matter is before the court on defendants Scott Pruitt (“Pruitt”), the United States Environmental Protection Agency (“the EPA”), Ryan Fisher (“Fisher”), and the United States Army Corps of Engineers' (“the Army Corps, collectively “the government”) motion to transfer case to the Southern District of Texas, ECF No. 13, and proposed intervenor-defendants American Farm Bureau Federation, American Forest & Paper Association, American Petroleum Institute, American Road and Transportation Builders Association, Leading Builders of America, Matagorda Farm Bureau, National Alliance of Forest Owners, National Association of Home Builders, National Association of Manufacturers, National Cattlemen's Beef Association, National Corn Growers Association, National Mining Association, National Pork Producers Council, National Stone, Sand and Gravel Association, Public Lands Council, Texas Farm Bureau, and U.S. Poultry & Egg Association's (collectively, “the business groups”) motion to intervene, ECF No. 16. For the reasons set forth below, the court denies the motion to transfer and grants the motion to intervene.

         I. BACKGROUND

         This case arises out of the promulgation of a rule (“the Suspension Rule”) that suspends the 2015 Clean Water Rule (“the WOTUS rule”) for two years. The Clean Water Act (“the Act”) prohibits discharge of pollutants from a point source into “navigable waters” without a permit. 33 U.S.C. §§ 1311(a), 1342, 1344, 1362(12). The Act defines “navigable waters” as “waters of the United States, including the territorial seas” but does not define what constitute “waters of the United States.” In 1980, the Environmental Protection Agency (“the EPA”) and in 1982 the Army Corps of Engineers (“the Army Corps”) issued a regulation that defined the term “waters of the United States, ” (hereinafter, “the 1980s regulation”). Under the 1980s regulation, the term “waters of the United States” included interstate waters including interstate wetlands, other waters such as “intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, ” and wetlands adjacent to these waters. The 1980s regulation specifically excluded “waters that are themselves wetlands” as a “waters of the United States.”

         On August 28, 2015, the EPA and the Army Corps enacted the WOTUS rule to clarify what types of waters constitute a “waters of the United States” and are thus covered by the Act. The WOTUS rule replaced the 1980s regulation, and includes seasonal streams, wetlands, and tributaries as a “water of the United States.” Soon after its enactment, the WOTUS rule became embroiled in litigation, with cases being brought in district courts across the country, including the Southern District of Texas (“the Texas litigation”). The government petitioned the Judicial Panel on Multi-District Litigation to consolidate these district court actions, which the Panel denied in October 2015.

         All of the challenges to the district court decisions regarding the WOTUS rule were consolidated in the Sixth Circuit. In February 2016, the Sixth Circuit ruled that it had original jurisdiction over challenges to the WOTUS rule and issued a nationwide stay of the rule. At the time that the Sixth Circuit issued its nationwide stay of the WOTUS rule, in separate proceedings the District of North Dakota had issued a preliminary injunction against the WOTUS rule effective in thirteen states. As a result of this ruling by the Sixth Circuit, the pending district court cases were either stayed or administratively closed. On January 22, 2018, the United States Supreme Court ruled that the circuit courts did not have original jurisdiction to review the WOTUS rule, and that challenges must continue to be filed in the district courts. The Sixth Circuit then vacated the nationwide stay of the WOTUS rule. The injunction against the WOTUS rule issued by the District of North Dakota stayed in place.

         On February 28, 2017, President Donald Trump issued Executive Order 13, 778, which directed the Administrator of the EPA Scott Pruitt (“Pruitt”) and the Assistant Secretary of the Army for Civil Works Ryan Fischer (“Fischer”) to “review the . . . [WOTUS rule] . . . for consistency with . . . [administration] policy . . . and publish for notice and comment a proposed rule rescinding or revising the rule, as appropriate and consistent with [the] law.” On February 6, 2018, the Suspension Rule was published in the Federal Register. The effect of the Suspension Rule was that the WOTUS rule was delayed until 2020, and in the interim period the controlling interpretation of “waters of the United States” was that prescribed by the 1980s regulation which had been in place prior to the WOTUS rule.

         On the same day that the Suspension Rule went into effect, a coalition of conservation groups consisting of the South Carolina Coastal Conservation League, Charleston Waterkeeper, American Rivers, Chattahoochee Riverkeeper, Clean Water Action, Defenders of Wildlife, Friends of the Rappahannock, North Carolina Coastal Federation, and the North Carolina Wildlife Federation (collectively, “environmental plaintiffs”) filed suit against the manner in which the Suspension Rule was enacted. Environmental plaintiffs allege the following claims: (1) in promulgating the Suspension Rule, the EPA and Army Corps violated the Administrative Procedure Act (“APA”) by taking action with inadequate public notice and comment as prescribed by the APA; (2) the government's failure to consider the substantive implications of suspending the WOTUS rule in enacting the Suspension Rule was arbitrary and capricious under the APA, which directs federal agencies to “examine the relevant data and articulate . . . satisfactory explanation[s] for . . . [their] action[s]”; and (3) the government's failure after enacting the Suspension Rule to restore the 1980s regulation to the Federal Register violates the APA, which requires federal agencies to publish the language of any substantive regulation that they intend to have legal effect. Environmental plaintiffs ask the court to declare that the EPA and the Army Corps acted arbitrarily and unlawfully in promulgating the Suspension Rule, and to vacate the Suspension Rule.

         On February 6th, 2018, the government filed a motion to transfer the case to the Southern District of Texas. ECF No. 13. Environmental plaintiffs filed a response on March 1, 2018, ECF No. 19, and the government filed a reply on March 8, 2018, ECF No. 25. On March 14, 2018, environmental plaintiffs filed a sur-reply. ECF No. 29. On February 28, 2018, the business groups filed a motion to intervene. ECF No. 16. On March 14, 2018, environmental plaintiffs filed a response. ECF No. 30. On March 21, 2018, the business groups filed a reply. ECF No. 21. Both motions have been fully briefed and are now ripe for the court's review.

         II. STANDARDS

         A. Motion to Transfer

         Pursuant to 28 U.S.C. § 1404(a), “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented. “The burden is on the movant to show that transfer pursuant to Section 1404(a) is proper.” Virginia Innovation Scis., Inc. v. Samsung Elecs. Co., 928 F.Supp.2d 863, 867 (E.D. Va. 2013). “‘Decisions whether to transfer a case pursuant to 28 U.S.C. § 1404 are committed to the discretion of the transferring judge.'” Herring v. LaPolla Indus., Inc., 2013 WL 12148849, at *3 (D.S.C. Oct. 7, 2013) (quoting Brock v. Entre Computer Ctrs., Inc., 933 F.2d 1253, 1257 (4th Cir. 1991)). In exercising this discretion, courts weigh a No. of factors:

(1) the plaintiff's initial choice of forum; (2) relative ease of access to sources of proof; (3) availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining attendance of willing and unwilling witnesses; (4) possibility of a view of the premises, if appropriate; (5) enforceability of a judgment, if one is obtained; (6) relative advantage and obstacles to a fair trial; (7) other practical problems that make a trial easy, expeditious, and inexpensive; (8) administrative difficulties of court congestion; (9) local interest in having localized controversies settled at home; (10) appropriateness in having a trial of a diversity case in a forum that is at home with the state law that must govern the action; and (11) avoidance of unnecessary problems with conflicts of laws.

Id.

         B. Intervention by Right

         Under Federal Rule of Civil Procedure 24(a), on timely motion, a court must permit anyone to intervene who “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.” Fed.R.Civ.P. 24(a)(2). The Fourth Circuit has ...


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