1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7

NORTHERN DISTRICT OF CALIFORNIA

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10 In re No. C 20-04636 WHA No. C 20-04869 WHA 11 CLEAN WATER ACT No. C 20-06137 WHA

RULEMAKING.

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13 This Document Relates to: (Consolidated)

14 ALL ACTIONS. ORDER DENYING MOTION FOR

INDICATIVE RULING

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16 17 In light of the Supreme Court’s stay pending appeal of a prior order that vacated EPA’s 18 Clean Water Act certification rule upon remand, plaintiffs seek an “indicative ruling” that 19 would clear the way for conclusive merits briefing on the validity of the rule in the district 20 court. Because plaintiffs have not demonstrated extraordinary circumstances, the motion is 21 DENIED. 22 Under Section 401 of the Clean Water Act, a federal agency may not issue a permit or 23 license to an applicant that seeks to conduct any activity that may result in any discharge into 24 the navigable waters of the United States unless the state (or other certifying entity) where the 25 discharge would originate issues a water quality certification or waives the requirement. EPA 26 employs 40 C.F.R. Part 121 to administer Section 401 certifications. After fifty years of 27 relying on the same iteration of that rule to administer certifications, EPA dramatically revised 1 states and the District of Columbia, three tribes, and six conservation organizations. Eight 2 states and several industry groups that represent energy interests intervened to defend the 2020 3 rule. 4 After President Biden was elected, however, EPA announced it would revise the 2020 5 rule, and moved for remand of the rule back to the agency but without vacatur. Plaintiffs 6 replied that the 2020 rule should be vacated upon remand to the agency. In the alternative, 7 plaintiffs argued remand should be denied. Intervenors did not contest remand but separately 8 moved to strike plaintiffs’ vacatur arguments and were permitted to file supplemental briefing 9 on the vacatur issue, which they did (Dkt. No. 172). 10 An October 2021 order vacated the 2020 rule with immediate effect and remanded to the 11 agency to do its revisions. While EPA declined to appeal, intervenors did so. A further order 12 herein denied intervenors’ motion to stay pending their appeal (Dkt. Nos. 173, 191). Our court 13 of appeals also denied intervenors’ motion for a stay. The Supreme Court, however, in an 14 order dated April 6, 2022, granted intervenors’ application for a stay of the vacatur order 15 pending appeal. The Supreme Court’s stay put the 2020 rule back into effect until EPA 16 completes promulgation of a new rule, targeted for Spring 2023, or until our court of appeals 17 decides the vacatur issue. Thereafter (and recently), EPA published a notice of proposed 18 rulemaking revising Part 121. 19 Plaintiffs now move for a Rule 62.1 “indicative ruling” that this Court would grant a Rule 20 60(b)(6) motion and revise the prior ruling so as to deny remand and to proceed to the merits. 21 This order follows full briefing and oral argument held telephonically. 22 Rule 62.1 states: “If a timely motion is made for relief that the court lacks authority to 23 grant because of an appeal that has been docketed and is pending, the court may: (1) defer 24 considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if 25 the court of appeals remands for that purpose or that the motion raises a substantial issue.” If 26 the district court goes with the third option, the moving party notifies the court of appeals. 27 Pursuant to Federal Rule of Appellate Procedure 12.1, the court of appeals may then remand 1 most courts followed when a party made a Rule 60(b) motion to vacate a judgment pending on 2 appeal. See FRCP 62.1 Advisory Committee Notes; Mendia v. Garcia, 874 F.3d 1118, 1121 3 (9th Cir. 2017). 4 The Supreme Court stayed the vacatur order only until such time as our court of appeals 5 rules on whether vacatur was proper and the time for petitioning for Supreme Court review 6 lapses. So, it is still open to our court of appeals to provide the very relief plaintiffs sought and 7 obtained from this Court. Indeed, that appellate briefing will be complete today. After so 8 much effort, it seems topsy turvy to reverse field and to “indicate” that this Court would prefer 9 to modify the judgment so as not to remand and then to address the merits of the 2020 rule. 10 The agency plans to reinstate key aspects of the 1971 rule and discard the major changes 11 made by the 2020 rule. In a June 9 notice, EPA explained: 12 The 2020 Rule represented a substantive departure from some of the Agency’s and certifying authorities’ core prior interpretations 13 and practices with respect to water quality certification. Moreover, the 2020 Rule deviated sharply from the cooperative federalism 14 framework central to section 401 and the CWA. . . . [T]he 2020 Rule rejected nearly twenty-five years of Agency practice and 15 Supreme Court precedent regarding the appropriate scope of certification review. . . . In this proposal, the Agency is returning 16 to some of those important core principles, such as an “activity as a whole” approach to the scope of certification review and greater 17 deference to the role of states and tribes in the certification process . . . . 18 19 87 Fed. Reg. 35,318, 35,319 (June 9, 2022). 20 We must ask what is the point of proceeding to litigate the merits of the 2020 rule when 21 the agency says it will eviscerate it anyway? What is really going on here is gamesmanship. 22 The new rule will issue in less than a year and moot out the larger war between the states. This 23 will be so even if our court of appeals rules against plaintiffs on the vacatur issue. If it rules 24 for plaintiffs, plaintiffs will get the relief they want even sooner. It would take almost that long 25 to decide the merits of the 2020 rule. 26 This Court ruled for plaintiffs both on the vacatur issue and on the stay issue but 27 plaintiffs lost on the stay issue in the Supreme Court. The vacatur and remand were issued 1 remand would not have occurred had we all known in advance that a stay would have been 2 granted by the Supreme Court. We have gone too far down that path to reverse field now. We 3 are reasonably close to a decision from our court of appeals. EPA’s new rule is also just 4 around the corner, so close that there is little point in backing up and adjudicating a rule, the 5 2020 rule, that has little viability left. The Court is not persuaded that it would grant a Rule 6 60(b)(6) motion as outlined by plaintiffs or should otherwise issue an “indicative ruling.” 7 For the foregoing reasons, the motion for an indicative ruling is DENIED. 8 IT IS SO ORDERED. 9 10 Dated: July 27, 2022. Pee 12 (Aa _ er

LLIAM ALSUP

UNITED STATES DISTRICT JUDGE

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