On March 31, a federal judge in Kentucky declined to issue an injunction against the Biden Administration’s new Waters of the US (WOTUS) rules. Judge Gregory Van Tatenhove's decision stated:
Without a certainly impending injury, the matter is not ripe for review. Simply put, there is no standing. Judges may not pull a case off the shelf because the policy issue is compelling. Their work is limited to “cases and controversies,” words of limitation. The Court has no power to decide this matter and so, for the reasons set out below, the Motions for Preliminary Injunction [R. 10; R. 17] are DENIED WITHOUT PREJUDICE.
This action represents yet another data point to inform the long-standing WOTUS debate. Larry Liebesman was a Department of Justice environmental litigator for more than a decade. His assessment of ruling and its potential impact on the water resources community is below:
“Judge Van Tatenhove held that, in essence, since the rules have not yet been enforced in Kentucky, there is not cause for specific injury to these plaintiffs. Until plaintiffs can provide specific evidence that compliance with the rule will result in direct and immediate harm, such as costs and delays as the State of Texas demonstrated, the court will not allow general pre-enforcement review of the rule as a whole based on future and speculative injury. However, if such evidence can be provided by these plaintiffs or others as to the rule’s direct and immediate impact, it can be challenged in Kentucky.
“The court essentially held that the plaintiffs did not provide specific evidence that the rule’s enforcement was causing them immediate and direct harm. This failure to provide specific evidence meant that both the private plaintiffs and the Commonwealth of Kentucky failed to provide that evidence meant that they did not have standing, a Constitutional requirement to litigate a case.
“The Court distinguished the lack of evidence here with a March 19 WOTUS injunction issued by a Federal Judge in Texas applicable only to Texas and Idaho. There, the State of Texas submitted declarations with specific mitigation costs and expenses that the State would incur with the rule’s effective date (see p. 18).
“In contrast, both the private plaintiffs and the Commonwealth of Kentucky provided only very broad claims of expenditures that they will ‘likely’ incur unrelated to any specific projects or actions. The Court made clear that the ruling was without prejudice, meaning that the plaintiffs could in the future provide sufficient specific evidence of ‘sufficiently imminent’ injury to establish standing. (p. 21).
“Bottom line – despite the fact that the rule is in effect and being enforced (except in Texas and Idaho), a plaintiff must still provide specific evidence that the rule will have direct and immediate impacts to get into federal court. It’s another reminder that when it comes to WOTUS, understanding the regulatory and legal rules in play is fundamental.
The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.