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North Dakota Judge Limits His Water Rule Injunction to 13 States

A North Dakota federal district judge on Friday limited to 13 states an injunction he approved late last month against the Obama administration's proposed expansion of the scope of the federal Clean Water Act.

Calling the proposal from the U.S. Environmental Protection Agency (EPA) "exceptionally expansive," Ralph Erickson, chief district judge for the U.S. District Court for the District of North Dakota Southeastern Division, previously granted the preliminary injunction sought by 13 states (see Shale DailyAug. 28).

Following the joint release earlier in the year by EPA and the U.S. Army Corps of Engineers, North Dakota and a dozen other states joined a lawsuit and sought a preliminary injunction against the expansion of federal rules (see Shale Daily, Aug. 11). A hearing was held Aug. 21, and the expansion was set to be effective Aug. 28, Now Erickson -- as the federal agency had earlier done -- confirmed that it did not block the new rule from being effective in the 37 other states (see Shale DailyAug. 31).

The 13-state North Dakota-led lawsuit is one of several challenging the EPA water rule. Texas Attorney General Ken Paxton, who filed a case against the EPA water action last June, said he thinks there should be a nationwide injunction, but he agreed with Erickson’s limitation on the injunction.

"Texas has filed its own case challenging the EPA's overreaching regulation of state waters," Paxton said. "We will continue to fight the EPA's blatant overreach in our own case, and will work to protect the state and private property owners from this latest and potentially most invasive attempt by the Obama administration to control our lives and livelihoods."

Although federal judges have the power to invoke injunctions nationally, Erickson said there are "significant prudential reasons" to limit the scope of this preliminary injunction. "Based on ...considerations, the court is of the opinion that agencies should be enjoined from enforcing the rule only to the immediate plaintiffs."

Thus, the preliminary injunction is now in effect in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

Following Erickson's Aug. 27 granting of the preliminary injunction, the 13 states filed a notice seeking affirmation that it applied nationwide. Briefs were filed. Erickson noted that nothing requires a judge to make an injunction national in scope, and he also said that "compelling reasons" favored both expanding and limiting the scope.

Given the fact that there are competing sovereign states and courts involved in this larger case, "the court declines to extend the preliminary injunction at issues beyond the entities [bringing the legal action]," Erickson said.

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