In re Clean Water Act Rulemaking, No. 3:2020cv04636 - Document 191 (N.D. Cal. 2021)
Court Description: ORDER DENYING 179 MOTION FOR STAY PENDING APPEAL. SIGNED BY JUDGE ALSUP. (whalc2, COURT STAFF) (Filed on 12/7/2021)
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In re Clean Water Act Rulemaking Doc. 191 Case 3:20-cv-04636-WHA Document 191 Filed 12/07/21 Page 1 of 14 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 10 In re United States District Court Northern District of California 11 CLEAN WATER ACT RULEMAKING. 12 13 This Document Relates to: 14 ALL ACTIONS. No. C 20-04636 WHA No. C 20-04869 WHA No. C 20-06137 WHA (Consolidated) ORDER DENYING MOTION FOR STAY PENDING APPEAL 15 16 17 INTRODUCTION 18 Intervenor defendants move for a stay of the order vacating and remanding EPA’s Clean 19 Water Act Section 401 certification rule pending appeal. Intervenors’ arguments on the merits 20 and irreparable harm provide lukewarm support for a stay. On the other side, a stay would 21 substantially injure plaintiffs and does not align with the public interest. The motion is 22 DENIED. 23 24 STATEMENT The previous order at issue here describes our facts (Dkt. No. 173). In brief, Congress 25 enacted the Federal Water Pollution Control Act Amendments of 1972, commonly referred to 26 as the Clean Water Act, with the express goal “to restore and maintain the chemical, physical, 27 and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Relevant here, under 28 Section 401 of the act, a federal agency may not issue a permit or license to an applicant that Dockets.Justia.com Case 3:20-cv-04636-WHA Document 191 Filed 12/07/21 Page 2 of 14 1 seeks to conduct any activity that may result in any discharge into the navigable waters of the 2 United States unless the state where the discharge would originate issues a water quality 3 certification or waives the requirement. Authorized tribes and EPA can also act as certifying 4 entities. Notably: “No license or permit shall be granted if certification has been denied by the 5 State, interstate agency, or the Administrator [of the EPA], as the case may be.” 33 U.S.C. § 6 1341(a)(1). Section 401 certifications are required for certain permits issued by, for example, 7 the Army Corps of Engineers and the Federal Energy Regulatory Commission (FERC). 8 United States District Court Northern District of California 9 EPA employed 40 C.F.R. Part 121 to administer Section 401 certifications, which the agency had promulgated a year prior to the Clean Water Act to regulate water quality 10 certifications pursuant to Section 21(b) of the FWPCA. See 36 Fed. Reg. 22,487 (Nov. 25, 11 1971), redesignated at 37 Fed. Reg. 21,441 (Oct. 11, 1972), redesignated at 44 Fed. Reg. 12 32,899 (June 7, 1979). EPA utilized this regulation unchanged for half a century. This order 13 will refer to this certification rule as the 1971 rule. 14 On September 11, 2020, EPA revised 40 C.F.R. Part 121 in accordance with President 15 Trump’s Executive Order 13,868, which asserted that the “Federal Government must promote 16 efficient permitting processes and reduce regulatory uncertainties that currently make energy 17 infrastructure projects expensive and that discourage new investment.” 84 Fed. Reg. 15,495 18 (Apr. 15, 2019); see also 85 Fed. Reg. 42,210 (July 13, 2020). The revised Section 401 19 certification rule — which this order will refer to as the 2020 rule — parted ways with the 20 1971 rule in dramatic fashion. This led to challenges to the rule by our plaintiff states, tribes, 21 and non-profit conservation groups. Those actions eventually consolidated before the 22 undersigned. 23 In October 2020, eight states and three industry groups intervened as defendants. But the 24 election of President Biden in November shifted the course of this litigation. On January 20, 25 2021, Executive Order 13,990 revoked Executive Order 13,868. The Biden administration also 26 specifically listed the 2020 rule as one agency action it planned to review. Five months later, 27 on June 2, 2021, EPA noticed its intent to revise the 2020 rule. EPA expects to finalize the 28 new certification rule by Spring 2023. 86 Fed. Reg. 7,037 (Jan. 25, 2021); 86 Fed. Reg. 29,541 2 Case 3:20-cv-04636-WHA Document 191 Filed 12/07/21 Page 3 of 14 1 (June 2, 2021); Fact Sheet: List of Agency Actions for Review, 2 https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of- 3 agency-actions-for-review/ (Jan. 20, 2021). United States District Court Northern District of California 4 Less than a month after EPA announced it would revise the 2020 rule, the agency, in this 5 action, moved for remand of the rule without vacatur (Dkt. No. 143). Plaintiffs, opposing the 6 motion, argued that the 2020 rule should be vacated upon remand to the agency. Intervenors, 7 who had chosen not to file any briefing on EPA’s motion up to that point, filed a reply brief 8 arguing for remand without vacatur and separately moved to strike plaintiffs’ vacatur 9 arguments (Dkt. Nos. 148, 155). After a hearing on the motions, intervenors were offered the 10 opportunity to file supplemental briefing on the vacatur issue, which they did (Dkt. No. 172). 11 An October 2021 order vacated and remanded the 2020 rule (Vacatur Order, Dkt. No. 12 173). EPA has stated it will not appeal the vacatur order. Intervenors, however, now move for 13 a stay of the vacatur order pending their own appeal. To expedite the hearing on this motion, 14 defendants waived their reply briefing. This order follows oral argument held telephonically 15 due to the COVID-19 pandemic. 16 17 18 ANALYSIS Under the traditional test for a stay pending appeal, a district court considers four factors: 20 (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. 21 Nken v. Holder, 556 U.S. 418, 433–34 (2009); see also Al Otro Lado v. Wolf, 952 F.3d 999, 22 1006–07 (9th Cir. 2020). 19 23 Our court of appeals has instructed that we weigh these factors using a flexible, sliding- 24 scale approach, under which “a stronger showing of one element may offset a weaker showing 25 of another.” Leiva-Perez v. Holder, 640 F.3d 962, 964, 966 (9th Cir. 2011). The first two 26 factors are the most critical. The mere possibility of success or irreparable injury are 27 insufficient. A movant must show “at a minimum, that she has a substantial case for relief on 28 the merits.” Id. at 964, 967–68. Irreparable harm carries a higher standard: a movant must 3 Case 3:20-cv-04636-WHA Document 191 Filed 12/07/21 Page 4 of 14 1 demonstrate irreparable harm is probable, not merely possible. We consider the final two 2 factors — which tend to merge when the government is an opposing party — once a movant 3 satisfies the first two. Nken, 556 U.S. at 435; United States v. Mitchell, 971 F.3d 993, 996 (9th 4 Cir. 2020). If a petition raises at least a serious question going to the merits, the other factors 5 can be satisfied by a showing that the balance of hardships tips sharply in the movant’s favor. 6 Leiva-Perez, 640 F.3d at 970. United States District Court Northern District of California 7 This order will proceed through the stay factors in a moment, but offers this overview. 8 On the one hand, allowing the 1971 rule to remain in effect will give certifying entities greater 9 latitude to prescribe more conditions. This would harm those who wish to be free of further 10 requirements, such as our intervenor defendants. On the other hand, should we allow the 2020 11 rule to remain in effect, those certifying entities that wish to impose more conditions on 12 Section 401 certifications will lose the opportunity to do so. This would result in harm to 13 them. We face a crossroads where one side or the other will suffer some harm, no matter what. 14 But harm is one thing, irreparable harm another. Certifying entities that dislike more 15 conditions can simply choose not to impose additional conditions. And, a party saddled with 16 unwanted conditions can sue in district court if presented with a flawed certification process. 17 These considerations mitigate some potential harms. Ultimately, when it comes to mitigating 18 harm, prudence favors maintaining the course EPA has charted the past fifty years under the 19 1971 rule, the devil we know, rather than the devil we don’t. 20 With these overarching points in mind, this order considers each factor in turn. 21 1. 22 We start with whether intervenors can make a “strong showing” of success on the merits. SUCCESS ON THE MERITS. 23 In light of the irreparable harm considerations previewed above, this order notes intervenors 24 need to make a commensurably stronger showing for the first factor. Intervenors assert they 25 are likely to succeed on the merits of their appeal of the vacatur order based on two issues: (1) 26 whether the Administrative Procedure Act (APA) requires a complete administrative record 27 and full briefing on the merits before a reviewing court may set aside an agency action; and (2) 28 whether the vacatur order correctly applied the Allied-Signal test (Br. 9–18). This order 4 Case 3:20-cv-04636-WHA Document 191 Filed 12/07/21 Page 5 of 14 1 questions whether intervenors have made a sufficient showing to justify a stay based on either 2 issue. 3 4 VACATUR PRIOR TO FULL ADJUDICATION ON THE MERITS. Intervenors argue nothing in the APA “authorizes a court to set aside federal agency 5 action without making the predicate finding that the action was unlawful, and that decision 6 must be based on a review of the agency’s record” (Br. 10). Further, intervenors argue that the 7 vacatur order “relied chiefly on the reasoning in Center for Native Ecosystems v. Salazar, 795 8 F. Supp. 2d 1236, 1241–42 (D. Colo. 2011),” which they assert is flawed in several ways (Br. 9 11–13). 10 United States District Court Northern District of California A. To start, intervenors’ statutory argument picks and chooses parts of the vacatur order to 11 criticize, garbling the order’s reasoning in the process. The vacatur order began with the 12 APA’s mandate that a district court “shall . . . set aside” unlawful agency actions (Vacatur 13 Order 7, citing 5 U.S.C. § 706(2)). Despite this directive, our court of appeals has repeatedly 14 held that, when equity demands, a flawed rule need not be vacated. See Pollinator 15 Stewardship Council v. EPA, 806 F.3d 520 (9th Cir. 2015); Cal. Cmtys. Against Toxics v. EPA 16 (CCAT), 688 F.3d 989 (9th Cir. 2012). Relying on these opinions, the order explained that our 17 court of appeals’ “holding that even a flawed rule need not be vacated supports the corollary 18 proposition that a flaw need not be conclusively established to vacate a rule” (Vacatur Order 19 7). In other words, because federal courts have the equitable power to refrain from vacating an 20 unlawful rule despite the express requirement a court set it aside in the APA, federal courts a 21 priori retain the equitable power to vacate rules prior to a conclusive finding on the merits in 22 procedural postures such as motions for voluntary remand. Nowhere in their briefing do 23 intervenors grapple with these cases or this analysis. Moreover, as plaintiffs note: “Singular 24 equitable relief is commonplace in APA cases.” East Bay Sanctuary Covenant v. Biden, 993 25 F.3d 640, 681 (9th Cir. 2021) (quotation omitted). 26 Intervenors proceed to state general principles of law that could support their position. 27 They assert that the APA’s waiver of sovereign immunity “must be strictly construed,” and 28 recite the semantic canon expressio unius est exclusio alterius (Br. 10, citing Dep’t of the Army 5 Case 3:20-cv-04636-WHA Document 191 Filed 12/07/21 Page 6 of 14 1 v. Blue Fox, Inc., 525 U.S. 255, 261 (1999)). But how do these broad legal concepts apply to 2 the analysis in the vacatur order, or undermine CCAT and Pollinator? Intervenors do not say. 3 See also Weinberger v. Romero-Barcelo, 456 U.S. 305, 320 (1982) (stating the broad tenet that 4 “a major departure from the long tradition of equity practice should not be lightly implied”). United States District Court Northern District of California 5 Intervenors go on to assert the vacatur order did not acknowledge cases like Carpenters 6 Industry Council v. Salazar, 734 F. Supp. 2d 126 (D.D.C. 2010) — which held the APA 7 precludes vacatur absent a conclusive judicial finding — or the policy concern that pre-merits 8 vacatur would permit an agency to repeal a rule without public notice and comment (Br. 11). 9 But the vacatur order expressly cited Carpenters Industry Council and the relevant section of 10 the Wright & Miller treatise regarding the conflicting policy implications of vacatur (Vacatur 11 Order 7). The order did not build its consideration of vacatur out of whole cloth. It cited 12 precedent from our court of appeals recognizing analogous equitable powers as well as 13 decisions by district court judges in our circuit supporting the vacatur order’s position (Vacatur 14 Order 7–8). Nor did the order ignore the policy concern that intervenors discuss. Rather, it 15 found more pertinent the competing concern that, “[l]eaving an agency action in place while 16 the agency reconsiders may deny the petitioners the opportunity to vindicate their claims in 17 federal court and would leave them subject to a rule they have asserted is invalid” (ibid). 18 19 20 Intervenors then attempt to distinguish Native Ecosystems, which held district courts may vacate agency actions prior to a merits determination. First, intervenors distinguish Native Ecosystems on the ground that, unlike here, the 21 agency had confessed error (Br. 11). This factual difference makes the reasoning in Native 22 Ecosystems regarding per-merits vacatur no less applicable. Moreover, this argument simply 23 puts a different spin on intervenors’ contention there must be some sort of conclusive statement 24 regarding unlawfulness in order to set aside an agency action. The vacatur order examined and 25 rejected that theory. Moreover, as explained below, step one of the Allied-Signal test does not 26 require any definitive statement on the merits. See Allied-Signal, Inc. v. U.S. Nuclear Regul. 27 Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993). 28 6 Case 3:20-cv-04636-WHA Document 191 Filed 12/07/21 Page 7 of 14 1 2 addressed remand without vacatur, not pre-merits vacatur (Br. 11–12, citing Ronald M. Levin, 3 “Vacation” at Sea: Judicial Remedies and Equitable Discretion in Administrative Law, 53 4 Duke L.J. 291 (2003)). Professor Levin’s article did indeed focus on remand without vacatur, 5 but the equitable principles it considered are readily applicable to the issues here, as Native 6 Ecosystems notes. See Native Ecosystems, 795 F. Supp. 2d at 1241 n. 8. Professor Levin’s 7 article, in fact, began with a discussion of our court of appeals’ decision Idaho Farm Bureau 8 Federation v. Babbitt, 58 F.3d 1392 (9th Cir. 1995), which both CCAT and Pollinator 9 expressly rely upon. Levin, supra, at 294. 10 United States District Court Northern District of California Second, intervenors contend the law review article relied upon by Native Ecosystems Third, intervenors fault Native Ecosystems for not addressing “whether pre-adjudication 11 vacatur has any analog in the precedent of the English High Court of Chancery” (Br. 12, citing 12 Grupo Mexicano de Desarrollo, SA v. Alliance Bond Fund, 527 U.S. 308, 318, 332 (1999)). 13 The argument goes no further than stating Grupo Mexicano’s holding. Intervenors provide no 14 analysis. Nor do they connect the dots back to the vacatur order. Intervenors do not 15 sufficiently raise this argument for this order to evaluate its merit. 16 Fourth, intervenors argue that Native Ecosystems “did not confront the settled principle 17 that equity cannot be invoked to evade limits imposed by law” (Br. 12, citing Porter v. Warner 18 Holding Co., 328 U.S. 395, 397–98 (1946)). Once again, intervenors’ point is lost given it 19 fails to consider the vacatur order’s analysis of CCAT or the order’s citation to other 20 corroborating caselaw. 21 As explained, intervenors assert many arguments regarding pre-merits vacatur. The 22 vacatur order itself recognized that the law on this issue is unsettled and that difficult questions 23 arise when vacatur comes into play in an agency’s motion for voluntary remand (Vacatur 24 Order 7). But intervenors neither substantively address the reasoning in the vacatur order, nor 25 proffer new arguments beyond those considered and rejected in the order. Even EPA, which 26 does not fully endorse the vacatur order’s analysis, concludes that intervenors do not “fully 27 grapple” with the complexities here (EPA Opp. 4 n. 3). This order doubts whether intervenors 28 have made a sufficiently strong showing of their likelihood of success on appeal of this issue. 7 Case 3:20-cv-04636-WHA Document 191 Filed 12/07/21 Page 8 of 14 1 2 THE ALLIED-SIGNAL ANALYSIS. The vacatur order applied the familiar Allied-Signal test when considering EPA’s remand 3 motion (Vacatur Order 8). Under Allied-Signal, the “decision whether to vacate depends on 4 [1] the seriousness of the order’s deficiencies (and thus the extent of doubt whether the agency 5 chose correctly) and [2] the disruptive consequences of an interim change that may itself be 6 changed.” Allied-Signal, 988 F.2d at 150–51 (quotation omitted). Intervenors argue the 7 vacatur order erroneously applied Allied-Signal. We start with Allied-Signal step one. 8 United States District Court Northern District of California B. First, intervenors recapitulate their primary equitable-powers argument, saying that 9 review of the first Allied-Signal factor “can only logically occur after a court has concluded 10 that a legal error has occurred” (Br. 13). But, as the vacatur order noted, in full context, the 11 first factor considers “the extent of doubt whether the agency chose correctly.” This analysis 12 can be performed without a conclusive decision on the merits. Remember, Allied-Signal arose 13 from a traditional preliminary injunction analysis (Vacatur Order 8–9). Intervenors do not 14 address this reasoning. 15 Second, intervenors contend the vacatur order’s failure to conduct a severability analysis 16 constituted error. The vacatur order deemed severance unnecessary because it found “serious 17 deficiencies in an aspect of the certification rule that, in EPA’s words, ‘is the foundation of the 18 final rule and [] informs all other provisions of the final rule’” (Vacatur Order 10–11, citing 85 19 Fed. Reg. at 42,256). Intervenors assert here that severance should have occurred because 20 “[s]everal of the procedural portions of the rule merely codif[ied] what federal courts have held 21 the Clean Water Act requires,” and that just because the “scope of certification provision may 22 have been a ‘foundation’ for other parts of the rule does not mean those parts are not 23 severable” (Br. 17). Intervenors demand a provision-by-provision review to salvage 24 procedural portions of the rule that remained in force anyway. As our court of appeals 25 reminds, “we ordinarily do not attempt, even with the assistance of agency counsel, to fashion 26 a valid regulation from the remnants of the old rule.” East Bay Sanctuary, 993 F.3d at 681 27 (quotation omitted). 28 8 United States District Court Northern District of California Case 3:20-cv-04636-WHA Document 191 Filed 12/07/21 Page 9 of 14 1 Third, intervenors assert the vacatur order’s analysis of PUD No. 1 was erroneous (Br. 2 15–16, citing PUD No. 1of Jefferson Cty. v. Wash. Dep’t of Ecology, 511 U.S. 700 (1994)). 3 The arguments intervenors proffer here are substantially similar to those considered by the 4 order. As explained in the order, EPA can change its interpretation of Section 401 and revise 5 the certification rule accordingly. But, for the 2020 rule, the agency embraced an 6 interpretation of the scope of Section 401 antithetical to the 1971 rule — which was consistent 7 with what PUD No. 1 deemed the most reasonable interpretation of the statute. It matters that 8 EPA did not merely assert a different interpretation but a contrary interpretation. As noted, 9 unexplained inconsistencies in an agency’s revisions to a rule indicate the new interpretation is 10 unreasonable and not entitled to Chevron deference (Vacatur Order 12–13). EPA failed to 11 sufficiently justify the inconsistent revisions in the 2020 rule. Without more, intervenors’ 12 argument here remains unconvincing. 13 Fourth, intervenors argue the vacatur order erred by considering EPA’s declaration in 14 support of its remand motion (see Br. 16, citing SEC v. Chenery Corp., 332 U.S. 194, 196 15 (1947)). EPA’s declaration asserted that the agency harbored substantial doubts regarding 16 nearly every aspect of the 2020 rule and that it would “restore” principles of cooperative 17 federalism in its new rulemaking (Dkt. No. 143-1). The vacatur order does not run afoul of 18 Chenery by noting EPA’s opinion of the grounds upon which it based the 2020 rule. The order 19 properly focused on the final rule and its preamble (Vacatur Order 13–14). Upon a motion for 20 voluntary remand, moreover, evaluations of remand and vacatur do not occur in isolation from 21 one another. See, e.g., Safer Chemicals, Healthy Families v. EPA, 791 Fed. App’x 653, 656 22 (9th Cir. 2019); Pollinator, 806 F.3d at 532–33; CCAT, 688 F.3d at 993–94. 23 Turning to step two of Allied-Signal, intervenors contend the vacatur order failed to 24 consider the level of disruption returning to the 1971 rule would cause. As explained in our 25 framing discussion above and in the proceeding irreparable harm analysis, this speculative 26 argument does not convince. Intervenors also insist the vacatur order erred when it concluded 27 that insufficient time had elapsed since promulgation of the 2020 rule to justify any 28 institutional reliance on it (Br. 18). Intervenors’ reference to implementation documents for 9 Case 3:20-cv-04636-WHA Document 191 Filed 12/07/21 Page 10 of 14 1 the 2020 rule do not demonstrate reliance. Intervenors also cite FERC’s rulemaking that 2 aligned its one-year deadline for certifications with the 2020 rule (Br. 18). But, as plaintiffs 3 point out, FERC explicitly disavowed the notion that it premised its rulemaking on the 2020 4 rule. See 86 Fed. Reg. 16,298, 16,299 n. 9 (Mar. 29, 2021). The 2020 rule was in effect for 5 thirteen months — and under attack since before day one — too brief and unsettled a time for 6 justifiable reliance to build up. 7 8 United States District Court Northern District of California 9 This order doubts whether intervenors have made a sufficiently strong showing on their likelihood of success on the merits of their appeal of the vacatur order’s Allied-Signal analysis. In sum, intervenors have not made particularly strong showings of their likelihood of 10 success on the merits. It bears emphasizing here that intervenors do not meaningfully critique 11 the vacatur order. Rather, intervenors cherry-pick strands of analysis to contest in isolation. 12 Nor did intervenors proffer any substantive arguments beyond those previously considered by 13 the order. Nevertheless, this order declines to halt the analysis at this stage. As explained at 14 the outset, atypical harm considerations warrants proceeding through the rest of the factors so 15 that we can better balance the equities. 16 2. 17 This order next considers whether intervenors will suffer irreparable harm absent a stay. IRREPARABLE HARM. 18 Intervenors argue that vacatur deprived them of statutory rights under the APA, that vacatur 19 “reimposes harms of constitutional magnitude,” and that vacatur has imposed irreparable 20 economic harms (Br. 19–22). This order finds intervenors have made, at best, a marginal 21 showing of irreparable harm. 22 First, intervenors argue the vacatur order irreparably harmed their “statutory right under 23 the APA to participate in the administrative process” (Br. 21). How? EPA announced in June 24 2021, months before the vacatur order, that the agency would revise the 2020 rule. Neither the 25 vacatur order, nor this litigation generally, has proscribed intervenors’ full participation in that 26 rulemaking process. Nor did the vacatur order dictate the final outcome of EPA’s ongoing 27 rulemaking. “The key word in this consideration is irreparable.” Al Otro Lado, 952 F.3d at 28 1008 (quotation omitted). Moreover, the vacatur order did not substitute the 2020 rule with a 10 Case 3:20-cv-04636-WHA Document 191 Filed 12/07/21 Page 11 of 14 1 judicially manufactured replacement. It temporarily reinstated the 1971 rule that EPA 2 employed for half a century. United States District Court Northern District of California 3 Second, intervenors contend that “what the [vacatur order] discounted as mere ‘negative 4 economic effects’ are of constitutional magnitude” (Br. 22). Constitutional violations are 5 generally deemed irreparable harm. See Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th 6 Cir. 1997). Analogizing to the Articles of Confederation, intervenors explain that certain states 7 unfairly exploited the 1971 rule, concluding: “There is every reason to believe those 8 constitutional harms will return without the [2020] Rule” (Br. 21). To support this speculative 9 assertion, intervenors highlight a certification issued by the State of Maryland that would have 10 required the Conowingo dam and hydroelectric project to remove phosphorus and nitrogen 11 from the Susquehanna River despite the project not actually discharging those two elements, or 12 pay $172 million per year for fifty years (Br. 22; Dkt. No. 172-1). The problem with 13 intervenors argument is that the project manager was able to challenge this alleged overreach 14 in federal court. It did so. In fact, the parties recently reached a settlement. See Exelon 15 Generation Co., LLC v. Grumbles, No. C 18-01224 APM, Dkt. No. 49 (D.D.C. Apr. 9, 2021) 16 (Judge Amit P. Mehta). And remember, PUD No. 1, our primary guidance from the Supreme 17 Court on Section 401, blessed a broad construction of the types of conditions certifying entities 18 may impose pursuant to Section 401. See PUD No. 1, 511 U.S. at 711–12; see also id. at 723 19 (Stevens, J., concurring). 20 Third, intervenors say that their members face irreparable economic harm absent a stay. 21 Monetary harm is not typically considered irreparable, although exceptions do exist for certain 22 economic injures that are not recoverable as damages. See Al Otro Lado, 952 F.3d at 1008; 23 California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018). Intervenors focus on how, due to the 24 vacatur order, the Army Corps of Engineers paused permitting under its purview, providing 25 three examples of resultant harm (Dreskin Decl. ¶¶ 14–22). This order questions whether any 26 of the economic harms intervenors describe rank as irreparable. Many of the economic harms 27 intervenors assert, such as unspecified delays to projects, remain too speculative to rank as 28 irreparable. Others do not directly harm intervenors themselves. See Azar, 911 F.3d at 581; 11 Case 3:20-cv-04636-WHA Document 191 Filed 12/07/21 Page 12 of 14 1 Doe #1 v. Trump, 957 F.3d 1050, 1060 (9th Cir. 2020). And some harms intervenors describe 2 are more properly considered the economic costs of complying with the vacatur order, which 3 do not qualify as irreparable, rather than economic injuries perpetrated by certifying entities, or 4 by permitters like the Corps, which could conceivably be irreparable. United States District Court Northern District of California 5 Intervening events, moreover, have significantly undercut the strength of intervenors’ 6 showing of irreparable economic harm. At the hearing, intervenors acknowledged the Corps 7 had already restarted its permitting process during the pendency of the stay motion (see also 8 Anastasio Decl. ¶¶ 4–5). This indicates that the scope of harm intervenors describe amounts to 9 a predictable pause by permitters like the Corps to reassess the certification process in light of 10 the vacatur order. As EPA states, until it “concludes its rulemaking process, there will be 11 uncertainty regarding future permitting requirements” (EPA Opp. 8). This comes into play 12 when we balance the hardships. 13 This order finds that intervenors have not clearly demonstrated serious irreparable harm 14 absent a stay. At best, intervenors’ showing of irreparable harm ranks as marginal. And, even 15 giving intervenors the benefit of the doubt, “certainty of irreparable harm has never entitled 16 one to a stay.” Leiva-Perez, 640 F.3d at 965. 17 18 19 3. INJURY TO OTHER PARTIES, THE PUBLIC INTEREST, AND WEIGHING THE STAY FACTORS. As discussed in this order’s overture, injury to other parties and where the public interest 20 lies merit consideration here. We thus consider the third and fourth stay factors despite tepid 21 showings by intervenors on their likelihood of success on the merits and irreparable harm. 22 Intervenors contend that a stay supports the public interest because the 2020 rule “fills a 23 gaping regulatory void” and prevents states from “impair[ing] the interests of other states” (Br. 24 23). This order, however, agrees with EPA’s statement that the public interest “weighs in 25 favor of returning to the familiar 1971 regulations while EPA completes” its rulemaking (EPA 26 Opp. 9). Staying the course with a familiar rule avoids further regulatory uncertainty. 27 Intervenors’ assertion that plaintiffs “can challenge any particular application of the Rule that 28 12 Case 3:20-cv-04636-WHA Document 191 Filed 12/07/21 Page 13 of 14 1 causes the harm they claim they will suffer” (Br. 23), would also seem to apply equally well to 2 intervenors themselves. See, e.g., Exelon, No. C 18-01224 APM (D.D.C.). 3 4 preserving nature and avoiding irreparable harm to the environment. The Act has the express 5 goal “to restore and maintain the chemical, physical, and biological integrity of the Nation’s 6 waters.” 33 U.S.C. § 1251(a). And our court of appeals has recognized the public interest in 7 preventing environmental harm. See, e.g., The Lands Council v. McNair, 537 F.3d 981, 1004– 8 05 (9th Cir. 2008), overruled in part on other grounds by Winter v. Nat. Res. Def. Council, 9 Inc., 555 U.S. 7 (2008); Southeast Alaska Conservation Council v. U.S. Army Corps of 10 11 United States District Court Northern District of California More substantively, the public interest as to the Clean Water Act, at base, lies in Engineers, 472 F.3d 1097, 1101 (9th Cir. 2006). Plaintiffs convincingly asserted for the vacatur order that irreparable environmental harm 12 would result should the 2020 rule remain in effect. The order highlighted permitting issues 13 related to three dams on the State of Washington’s Skagit River (Vacatur Order 16). Other 14 examples carry similar force. Plaintiffs also pointed to a sediment removal project upstream 15 from the Marble Bluff Dam in Nevada. The project seeks to remove a sediment island on the 16 Truckee River, and its certification is up for renewal prior to EPA’s estimated promulgation of 17 a revised rule. The sediment currently blocks threatened fish from swimming upstream to 18 spawning areas and contains high levels of mercury. Removal could cause environmentally 19 dangerous sediment to run off into nearby Pyramid Lake. The Pyramid Lake Paiute Tribe 20 manages certifications for this project, but the 2020 rule would prevent it from placing 21 restrictions on the mercury run-off (Dkt. No. 145-1 at ¶¶ 26–27). A stay would permit 22 irreparable environmental harms like this to occur. The public interest lies in preventing these 23 sorts of environmental injuries, especially given the marginal and speculative showing of 24 economic harm on the other side of the scale. 25 Upon consideration of the applicable factors, this order finds intervenors have not 26 justified a stay of the vacatur order. Intervenors fail to substantively probe the vacatur order’s 27 reasoning, or misstate it. Most of the harm intervenors describe remains speculative. If they 28 did identify irreparable harm, their showing ranks as marginal. On the other hand, EPA and 13 Case 3:20-cv-04636-WHA Document 191 Filed 12/07/21 Page 14 of 14 1 plaintiffs have demonstrated that the equities tip sharply in favor of denying a stay due to the 2 importance of preserving some certainty in the administrative process and plaintiffs’ showing 3 of substantial, irreparable environmental harm should a stay go into effect. 4 4. 5 One last point. The parties also brief the antecedent question of whether intervenors can 6 even appeal the vacatur order in the first place. Both EPA and plaintiffs assert that the vacatur 7 order is non-final and unappealable by intervenors within the meaning of Section 1291 of Title 8 28 of the United States Code (EPA Opp. 5–7; Plaintiffs Opp. 4). We need not linger on this 9 issue. This order has already found that a stay should be denied under the traditional four- 10 THE APPEALABILITY OF THE VACATUR ORDER. factor test. This question can be left up to our court of appeals. United States District Court Northern District of California 11 12 CONCLUSION For the reasons stated, the motion is DENIED. IT IS SO ORDERED. 13 14 Dated: December 7, 2021. 15 16 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 14
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