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Ohio Valley Environmental Coalition, Inc. v. Pruitt

United States District Court, S.D. West Virginia, Huntington Division

May 2, 2017

SCOTT PRUITT, Administrator, United States Environmental Protection Agency and CECIL RODRIGUES, Acting Regional Administrator, United States Environmental Protection Agency, Region III, [1] Defendants.



         Pending before the Court is Defendants' Motions for Stay Pending Appeal. ECF No. 91. In a Memorandum Opinion and Order dated February 14, 2017, the Court granted in part and denied in part Plaintiffs' motion for summary judgment and ordered Defendants (collectively “EPA”) to comply with the Clean Water Act (“CWA”) by approving or disapproving the West Virginia Department of Environmental Protection's (“WVDEP”) “constructive submission of no TMDLs for all biologically impaired bodies of water for which no TMDL has been developed to address that impairment within thirty days.” ECF No. 87. EPA has not demonstrated extraordinary circumstances required to win a stay. Accordingly, and as set forth in more detail in the remainder of this Memorandum Opinion, EPA's Motion is DENIED.

         I. Background

         Plaintiffs brought suit against EPA claiming that it had neglected its duty pursuant to the CWA to address WVDEP's refusal to produce Total Maximum Daily Load (“TMDL”) limits for streams designated biologically impaired. As more fully set out in the Court's February 14 Memorandum Opinion and Order, the CWA requires states to develop a TMDL for each body of water deemed by the state to be impaired. 33 U.S.C. § 1313(d)(1)(C); 40 C.F.R. § 130.7(c)(1). The state must then submit those TMDLs to EPA for approval within thirty days. Id. If EPA disapproves a TMDL, EPA must then produce that TMDL within thirty days of disapproval. § 1313(d)(2). Where a “state's actions clearly and unambiguously express a decision to submit no TMDL for a particular impaired waterbody, ” Hayes v. Whitman, 264 F.3d 1017, 1024 (10th Cir. 2001), known as a “constructive submission, ” EPA must approve or disapprove of the absence within thirty days of the state's failure. § 1313(d)(2). Were it to disapprove the missing TMDL, meaning EPA believed a TMDL to be necessary, EPA is obliged to produce the TMDL within thirty days. Id. If it approves the constructive submission, EPA need not take any further action.

         In 2012 the West Virginia Legislature passed legislation to require WVDEP to develop a new methodology to determine which bodies of water are considered biologically impaired pursuant to the state's narrative water quality standards. Letter from Randy C. Huffman, Cabinet Sec'y, WVDEP, to Jon M. Capacasa, Dir., Water Prot. Div., EPA Region III (Apr. 6, 2012), J.A. 3298 [hereinafter Huffman Letter]. Until 2010 West Virginia used the West Virginia Stream Condition Index (“WVSCI”) to determine whether a body of water was in compliance with the state's narrative water quality standards. EPA Enclosure 1 Review of W.Va.'s 2012 Section 303(d), J.A. 2597. Where a body of water does not meet the narrative water quality standards, as measured by a failing WVSCI score of 68 or lower, that body of water is considered biologically impaired. Id. WVDEP interpreted the 2012 legislation, known as SB 562, to prohibit WVDEP from developing TMDLs to address streams that were deemed to be biologically impaired as indicated by a failing WVSCI score until it could develop a new methodology. Huffman Letter, J.A. 3298. Plaintiffs brought suit against EPA, arguing that WVDEP's refusal to develop TMDLs for biological impairment until it developed a new testing methodology was a constructive submission which triggered EPA's duty to approve or disapprove of the submission of no TMDLs for biologically impaired bodies of water. Second Am. Compl. ECF No. 78. The Court agreed and granted summary judgment in favor of Plaintiffs. Memorandum Opinion and Order, ECF No. 87. The Court ordered EPA to “approve or disapprove WVDEP's constructive submission of no TMDLs for all biologically impaired bodies of water for which no TMDL has been developed to address that impairment within thirty days.” Id.

         The Court then granted EPA's unopposed motion to extend the deadline to comply with the Court's Order by an additional thirty days so that EPA could determine if it would appeal the decision and seek a stay. Order, ECF No. 89. EPA now requests a stay pending resolution of its appeal. Plaintiffs oppose the stay, arguing that EPA has not met the heavy burden to win a stay. While the Court does not believe EPA is entitled to a stay pending appeal, the Court granted EPA's motion for a stay pending the Fourth Circuit's decision on a request for a stay pending appeal should this Court deny EPA's current motion. Order Granting the Parties' Joint Motion, ECF No. 96.

         II. Legal Standard

         “[I]t has always been held that as part of its traditional equipment for the administration of justice, a federal court can stay the enforcement of a judgment pending the outcome of an appeal.” Nken v. Holder, 556 U.S. 418, 421 (2009) (quoting Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 9 (1942)). Rule 62(c) of the Federal Rules of Civil Procedure affirmatively invests federal district courts with the power to stay a final judgment granting an injunction pending its appeal. Fed.R.Civ.P. 62(c). The Supreme Court has long applied a four-factor test to determine whether a stay is warranted. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The now familiar factors are:

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.

Nken, 556 U.S. at 434 (quoting Hilton, 481 U.S. at 776). A stay of this kind “is considered ‘extraordinary relief' for which the moving party bears a heavy burden.'” Personhuballah v. Alcorn, 155 F.Supp.3d 552, 558 (E.D. Va. 2016) (quoting Larios v. Cox, 305 F.Supp.2d 1335, 1336 (N.D.Ga. 2004)).

         III. Analysis

         A. Likelihood of Success on Appeal

         Turning to the application of the first factor, whether EPA has made a strong showing of success on appeal, the Court finds that it has not met this burden. Application of this factor has bedeviled trial courts in this Circuit and this Court in particular. Consideration of whether an appeal of the trial court's decision will succeed puts the trial court in the awkward position of having to weigh the correctness of its decision as judged by an appellate court when it almost certainly would have evaluated that consideration in its ruling on the merits. Put perhaps more precisely, the first factor requires a trial court to judge the probability that an appellate court will accept the trail court's decision as correct when the trial court quite obviously believes that it has made the right choice. This Court acknowledged “the concerns at stake when a given court is asked to decide upon the correctness of its own ruling” in a recent decision. Ohio Valley Envtl. Coal. v. Army Corps of Eng'rs, 890 F.Supp.2d 688, 693 (S.D. W.Va. 2012) (OVEC).

         In light of this tension, courts in this Circuit have taken slightly differing approaches. Some trial courts have simply applied the standard in a straightforward manner. In these cases moving parties must make a “strong showing” of success on appeal. See, e.g., Personhuballah, 155 F.Supp.3d at 559; Scott v. Metro. Health Corp., No. 5:12-cv-383, 2013 WL 6145541, at *1-2 (E.D. N.C. Nov. 21, 2013). Others, including the Federal Circuit, have adopted a standard that steps slightly away from a rigid application of the first factor. In these cases, courts balance the first two factors, likelihood of success on appeal and irreparable injury, such that a stronger showing of irreparable injury will slightly reduce the showing required for the first factor. In other words, “[w]hen harm to applicant is great enough, a court will not require ‘a strong showing' that applicant is ‘likely to succeed on the merits.'” Standard Heavens Prods., Inc. v. Gencor Indus., Inc., 897 F.2d 511, 513 (Fed. Cir. 1990) (quoting Hilton, 481 U.S. at 776); see also, e.g., Par Pharm., Inc. v. TWI Pharm., Inc. No. CCB-11-2466, 2014 WL 3956024, at *2 (D. Md. Aug. 12, 2014) (quoting Hilton, 481 U.S. at 776). A showing of serious questions going to the merits so “substantial, difficult, and doubtful, as to make them a fair ground for litigation” may be sufficient to satisfy the first element. Standard Heavens, 897 F.2d at 513 (quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953)); see also U.S. Home Corp. v. Settlers Crossing, LLC, No. DKC 08-1863, 2015 WL 3973071, at *5 (D. Md. Jun. 29, 2015).

         This Court squared the circle by interpreting the standard to allow for some balancing between the first two factors but declined to adopt the easily shown “serious questions” standard.

         The Court held:

“the first prong never becomes so reduced that a party need only show ‘serious questions' because of its strong showing on the other factors. It may be possible that showing somewhat less than a ‘strong showing' or ‘likelihood' of success on the merits can suffice if the harm to the moving party . . . is great enough; however, that showing must be more than merely pointing to ‘serious questions.'”

OVEC, 890 F.Supp.2d at 692. The decision, based on a review of recent Fourth Circuit precedent, reasoned that a more easily attained standard betrays the fact that the trial court has already weighed the evidence before it and rendered a decision on the merits, which the moving party lost. Id. at 693. This, the Court believes, is the significant difference between preliminary injunctions, where the trial court can only make its best guess on how the case will turn out, and stays pending appeal where the merits have already been determined. With that in mind the Court concluded that “a party moving for a stay pending appeal must make at least as strong a showing on the first prong . . .-and certainly not a lesser showing-as compared to a party moving for a preliminary injunction.” Id. at 692 (emphasis in original).

         EPA supports the slightly lower “serious questions” standard. Mem. in Supp. of Mot. for Stay 4-5, ECF No. 92. On its face, and as defined by the Federal Circuit, the standard seems to overlap with this Court's standard in OVEC. Certainly, where a moving party can show serious questions so “substantial, difficult, and doubtful, ” that party also is likely, although not guaranteed, to prevail on appeal. This standard, however, appears to invite an erosion of what “is considered ‘extraordinary relief' for which the moving party bears a heavy burden.'” Personhuballah, 155 F.Supp.3d at 558. Indeed, at least one court in this Circuit has indulged such an erosion of the standard. In Realvirt, LLC v. Lee, the district court held that the standard by which to determine likelihood of success on appeal is “whether the issues presented on appeal could be rationally resolved in favor of the party seeking a stay.” No. 1:15-cv-963, 2016 WL 7325704, at *1 (E.D. Va. Nov. 22, 2016) (quoting United States v. Fourteen Various Firearms, 897 F.Supp. 271, 273 (E.D. Va. 1995)) (emphasis added).

         Functionally this test would require no more than a non-frivolous appeal, putting the stay in the category of ordinary relief rather than extraordinary. The Supreme Court has reminded lower courts, however, that, “the ‘possibility' standard is too lenient.” Nken, 556 U.S. at 435 (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). The Court agrees. It is important to remember that the non-moving party has already prevailed on the merits and a court has determined that it is entitled to the relief ordered. Applicants for a stay should not be able to unduly delay “the ...

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