By Nick Goldstein, vice president of regulatory affairs & assistant general counsel, ARTBA
In an encouraging sign for ARTBA’s environmental litigation, a federal district judge in North Dakota issued a preliminary injunction Aug. 27 preventing the U.S. Environmental Protection Agency (EPA) from implementing a new waterways rule that could lead to regulation of roadside ditches.
However, there is some confusion on how far the injunction reaches. Some analysts claim the injunction is nationwide, while others claim it could be limited to only North Dakota. EPA has said it considers the injunction to impact only those states that were involved in the decision, which are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.
Two other federal courts, one in Georgia, the other West Virginia, recently denied similar requests for a preliminary injunction. But all it takes is one injunction for the rule to be temporarily blocked.
ARTBA and 13 other trade associations recently sued EPA over the rule in a federal district court in Texas. At issue is how EPA’s attempts to define the types of bodies qualifying as “waters of the United States” and therefore subject to federal authority. For transportation construction, the new rule would require additional burdensome permitting requirements and likely be also used as a litigation tool by project opponents, both of which would result in delays to key transportation improvements and ultimately cost taxpayers more money.
ARTBA considers the North Dakota decision a welcome recognition of how overbroad the EPA rule is and will continue to keep membership updated on this important litigation. Please contact me with any questions.