Opinion
No. 15-14035
01-24-2018
State of GEORGIA, EX. REL. Christopher M. CARR in his official capacity as Attorney General of Georgia, 40 Capitol Square, S.W., Atlanta, GA 30334, State of West Virginia, Ex Rel. Patrick Morrisey in his official capacity as Attorney General of West Virginia, State Capitol Building 1, Room E-26, Charleston, WI V 25305, State of Alabama, Ex Rel. Steven T. Marshall in his official capacity as Attorney General of Alabama, 501 Washington Avenue, Montgomery, AL 36130 State of Florida, Ex Rel. Pamela Jo Bondi in her official capacity as Attorney General of Florida PL-01, The Capitol Tallahassee, FL 32399, State of Kansas, Ex Rel. Derek Schmidt in his official capacity as Attorney General of Kansas 120 SW 10th Ave., 2nd Floor, Topeka, KS 66612, Commonwealth of Kentucky, Ex Rel. Jack Conway in his official capacity as Attorney General of Kentucky, 700 Capitol Avenue, Suite 118, Frankfort, KY 40601, State of South Carolina, Ex Rel. Alan Wilson in his official capacity as Attorney General of South Carolina, 1000 Assembly Street, Room 519, Columbia, SC 29201, State of Utah, Ex Rel. Sean D. Reyes in his official capacity as Attorney General of Utah, Utah State Capitol Complex, 350 North State Street, Suite 230, Salt Lake City, UT 84114, State of Wisconsin, Ex Rel. Brad D. Schimel in his official capacity as Attorney General of Wisconsin, 17 West Main Street, Madison, WI 53707, State of Indiana, Ex. Rel. Gregory F. Zoeller, in his official capacity as Attorney General of Indiana, 302 West Washington Street, Indiana Government Center—South, Fifth Floor, Indianapolis, IN 46204, Plaintiffs-Appellants, North Carolina Department of Environmental Quality, 215 West Jones Street, Raleigh, NC 27603, Plaintiff, v. E. Scott PRUITT, in his official capacity as Administrator of the United States Environmental Protection Agency, Douglas W. Lamont, in his official capacity as Senior Official Performing the Duties of the Assistant Secretary of the Army (Civil Works), Defendants-Appellees.
Sarah Hawkins Warren, Christopher Michael Carr, James Doyle Coots, Samuel Scott Olens, Attorney General's Office, ATLANTA, GA, for Plaintiff-Appellant STATE OF GEORGIA, Ex. Rel. Christopher M. Carr in his official capacity as Attorney General of Georgia, 40 Capitol Square, S.W., Atlanta, GA 30334. Britt C. Grant, Attorney General's Office, ATLANTA, GA, Erica N. Peterson, Attorney General's Office, CHARLESTON, WV, for Plaintiff-Appellant STATE OF WEST VIRGINIA, Ex Rel. Patrick Morrisey in his official capacity as Attorney General of West Virginia, State Capitol Building 1, Room E-26, Charleston, WI V 25305. Andrew Lynn Brasher, Luther J. Strange, III, Alabama Attorney General's Office, MONTGOMERY, AL, Britt C. Grant, Attorney General's Office, ATLANTA, GA, for Plaintiff-Appellant STATE OF ALABAMA. Jonathan L. Williams, Pam Bondi, Jonathan Alan Glogau, Attorney General's Office, TALLAHASSEE, FL, Britt C. Grant, Attorney General's Office, ATLANTA, GA, for Plaintiff-Appellant STATE OF FLORIDA, Ex Rel. Pamela Jo Bondi in her official capacity as Attorney General of Florida PL-01, The Capitol Tallahassee, FL 32399. Jeffrey A. Chanay, State of Kansas Attorney General's Office, TOPEKA, KS, Britt C. Grant, Attorney General's Office, ATLANTA, GA, for Plaintiff-Appellant STATE OF KANSAS, Ex Rel. Derek Schmidt in his official capacity as Attorney General of Kansas 120 SW 10th Ave., 2nd Floor, Topeka, KS 66612. Gregory T. Dutton, Assistant Attorney General, Office of the Attorney General, Consumer Protection, Criminal Appeals and Victims Advocacy, Joseph Anthony Newberg, Sean J. Riley, Office of the Attorney General, FRANKFORT, KY, Britt C. Grant, Attorney General's Office, ATLANTA, GA, for Plaintiff-Appellant COMMONWEALTH OF KENTUCKY, Ex Rel. Jack Conway in his official capacity as Attorney General of Kentucky, 700 Capitol Avenue, Suite 118, Frankfort, KY 40601. James Emory Smith, Jr., Office of the Attorney General, COLUMBIA, SC, Britt C. Grant, Attorney General's Office, ATLANTA, GA, for Plaintiff-Appellant STATE OF SOUTH CAROLINA, Ex Rel. Alan Wilson in his official capacity as Attorney General of South Carolina, 1000 Assembly Street, Room 519, Columbia, SC 29201. Britt C. Grant, Attorney General's Office, ATLANTA, GA, for Plaintiff-Appellant STATE OF UTAH, Ex Rel. Sean D. Reyes in his official capacity as Attorney General of Utah, Utah State Capitol Complex, 350 North State Street, Suite 230, Salt Lake City, UT 84114. Misha Tseytlin, Wisconsin Department of Justice, Solicitor General, Britt C. Grant, Attorney General's Office, ATLANTA, GA, for Plaintiff-Appellant STATE OF WISCONSIN, Ex Rel. Brad D. Schimel in his official capacity as Attorney General of Wisconsin, 17 West Main Street, Madison, WI 53707. Thomas Molnar Fisher, Office of the Attorney General, INDIANAPOLIS, IN, Jonathan Alan Glogau, Attorney General's Office, TALLAHASSEE, FL, Britt C. Grant, Attorney General's Office, ATLANTA, GA, for Plaintiff-Appellant STATE OF INDIANA, Ex. Rel. Gregory F. Zoeller, in his official capacity as Attorney General of Indiana, 302 West Washington Street, Indiana Government Center—South, Fifth Floor, Indianapolis, IN 46204. Robert J. Lundman, Daniel Dertke, Amy J. Dona, Andrew J. Doyle, Jessica O'Donnell, Stephen Samuels, U.S. Department of Justice, Environment & Natural Res. Div., John David Gunter, II, U.S. Department of Justice, Appellate Section, Environment and Natural Resources Div., WASHINGTON, DC, R. Brian Tanner, J. Thomas Clarkson, Edward J. Tarver, U.S. Attorney's Office, SAVANNAH, GA, for Defendants-Appellees. Richard A. Horder, Jennifer A. Simon, Kazmarek Mowrey Cloud & Laseter, LLP, ATLANTA, GA, Amicus Curiae for SOUTHEASTERN LEGAL FOUNDATION, INC.
Sarah Hawkins Warren, Christopher Michael Carr, James Doyle Coots, Samuel Scott Olens, Attorney General's Office, ATLANTA, GA, for Plaintiff-Appellant STATE OF GEORGIA, Ex. Rel. Christopher M. Carr in his official capacity as Attorney General of Georgia, 40 Capitol Square, S.W., Atlanta, GA 30334.
Britt C. Grant, Attorney General's Office, ATLANTA, GA, Erica N. Peterson, Attorney General's Office, CHARLESTON, WV, for Plaintiff-Appellant STATE OF WEST VIRGINIA, Ex Rel. Patrick Morrisey in his official capacity as Attorney General of West Virginia, State Capitol Building 1, Room E-26, Charleston, WI V 25305.
Andrew Lynn Brasher, Luther J. Strange, III, Alabama Attorney General's Office, MONTGOMERY, AL, Britt C. Grant, Attorney General's Office, ATLANTA, GA, for Plaintiff-Appellant STATE OF ALABAMA.
Jonathan L. Williams, Pam Bondi, Jonathan Alan Glogau, Attorney General's Office, TALLAHASSEE, FL, Britt C. Grant, Attorney General's Office, ATLANTA, GA, for Plaintiff-Appellant STATE OF FLORIDA, Ex Rel. Pamela Jo Bondi in her official capacity as Attorney General of Florida PL-01, The Capitol Tallahassee, FL 32399.
Jeffrey A. Chanay, State of Kansas Attorney General's Office, TOPEKA, KS, Britt C. Grant, Attorney General's Office, ATLANTA, GA, for Plaintiff-Appellant STATE OF KANSAS, Ex Rel. Derek Schmidt in his official capacity as Attorney General of Kansas 120 SW 10th Ave., 2nd Floor, Topeka, KS 66612.
Gregory T. Dutton, Assistant Attorney General, Office of the Attorney General, Consumer Protection, Criminal Appeals and Victims Advocacy, Joseph Anthony Newberg, Sean J. Riley, Office of the Attorney General, FRANKFORT, KY, Britt C. Grant, Attorney General's Office, ATLANTA, GA, for Plaintiff-Appellant COMMONWEALTH OF KENTUCKY, Ex Rel. Jack Conway in his official capacity as Attorney General of Kentucky, 700 Capitol Avenue, Suite 118, Frankfort, KY 40601.
James Emory Smith, Jr., Office of the Attorney General, COLUMBIA, SC, Britt C. Grant, Attorney General's Office, ATLANTA, GA, for Plaintiff-Appellant STATE OF SOUTH CAROLINA, Ex Rel. Alan Wilson in his official capacity as Attorney General of South Carolina, 1000 Assembly Street, Room 519, Columbia, SC 29201.
Britt C. Grant, Attorney General's Office, ATLANTA, GA, for Plaintiff-Appellant STATE OF UTAH, Ex Rel. Sean D. Reyes in his official capacity as Attorney General of Utah, Utah State Capitol Complex, 350 North State Street, Suite 230, Salt Lake City, UT 84114.
Misha Tseytlin, Wisconsin Department of Justice, Solicitor General, Britt C. Grant, Attorney General's Office, ATLANTA, GA, for Plaintiff-Appellant STATE OF WISCONSIN, Ex Rel. Brad D. Schimel in his official capacity as Attorney General of Wisconsin, 17 West Main Street, Madison, WI 53707.
Thomas Molnar Fisher, Office of the Attorney General, INDIANAPOLIS, IN, Jonathan Alan Glogau, Attorney General's Office, TALLAHASSEE, FL, Britt C. Grant, Attorney General's Office, ATLANTA, GA, for Plaintiff-Appellant STATE OF INDIANA, Ex. Rel. Gregory F. Zoeller, in his official capacity as Attorney General of Indiana, 302 West Washington Street, Indiana Government Center—South, Fifth Floor, Indianapolis, IN 46204.
Robert J. Lundman, Daniel Dertke, Amy J. Dona, Andrew J. Doyle, Jessica O'Donnell, Stephen Samuels, U.S. Department of Justice, Environment & Natural Res. Div., John David Gunter, II, U.S. Department of Justice, Appellate Section, Environment and Natural Resources Div., WASHINGTON, DC, R. Brian Tanner, J. Thomas Clarkson, Edward J. Tarver, U.S. Attorney's Office, SAVANNAH, GA, for Defendants-Appellees.
Richard A. Horder, Jennifer A. Simon, Kazmarek Mowrey Cloud & Laseter, LLP, ATLANTA, GA, Amicus Curiae for SOUTHEASTERN LEGAL FOUNDATION, INC.
Before ED CARNES, Chief Judge, JILL PRYOR, Circuit Judge, and REEVES, District Judge.
Honorable Danny C. Reeves, United States District Judge for the Eastern District of Kentucky, sitting by designation.
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PER CURIAM:This is an appeal from the district court's denial of a preliminary injunction to enjoin enforcement of the Waters of the United States Rule that was jointly promulgated by the Environmental Protection Agency and the Army Corps of Engineers, 80 Fed. Reg. 37054 (June 29, 2015), under the Clean Water Act. See Georgia v. McCarthy, CV–215–79, 2015 WL 5092568 (S.D. Ga. Aug. 27, 2015) ; see also Georgia, ex. rel. Olens v. McCarthy, 833 F.3d 1317 (11th Cir. 2016).
We vacate and remand the district court's order for further proceedings in light of National Ass'n of Manufacturers v. Department of Defense, 583 U.S. ––––, 138 S.Ct. 617, ––– L.Ed.2d –––– (2018) (slip. op.) 2018 WL 491526.
VACATED AND REMANDED.