Case 3:20-cv-04636-WHA Document 148 Filed 08/04/21 Page 1 of 6
`
`TROUTMAN PEPPER HAMILTON
`TROUTMAN PEPPER HAMILTON
`SANDERS LLP
`SANDERS LLP
`Elizabeth Holt Andrews (SBN 263206)
`Elizabeth Holt Andrews (SBN 263206)
`elizabeth.andrews@troutman.com
`elizabeth.andrews@troutman.com
`Three Embarcadero Center, Suite 800
`Three Embarcadero Center, Suite 800
`San Francisco, California 94111-4057
`San Francisco, California 94111-4057
`Telephone:
`415.477.5700
`Telephone:
`415.477.5700
`Facsimile:
`415.477.5710
`Facsimile:
`415.477.5710
`Misha Tseytlin (admitted pro hac vice)
`Misha Tseytlin (admitted pro hac vice)
`misha.tseytlin@troutman.com
`misha.tseytlin@troutman.com
`Sean T.H. Dutton (admitted pro hac vice)
`Sean T.H. Dutton (admitted pro hac vice)
`sean.dutton@troutman.com
`sean.dutton@troutman.com
`227 W. Monroe Street, Suite 3900
`227 W. Monroe Street, Suite 3900
`Chicago, IL 60606-5085
`Chicago, IL 60606-5085
`Telephone:
`312.759.1920
`Telephone:
`312.759.1920
`Facsimile:
`312.759.1939
`Facsimile:
`312.759.1939
`
`Additional Counsel listed in signature
`Additional Counsel listed in signature
`blocks
`blocks
`
`Charles Sensiba (admitted pro hac vice)
`Charles Sensiba (admitted pro hac vice)
`charles.sensiba@troutman.com
`charles.sensiba@troutman.com
`401 9th Street N.W., Suite 1000
`401 9th Street N.W., Suite 1000
`Washington, D.C. 20004
`Washington, D.C. 20004
`Telephone:
`202.274.2850
`Telephone:
`202.274.2850
`Facsimile:
`202.274.2994
`Facsimile:
`202.274.2994
`Andrea W. Wortzel (admitted pro hac vice)
`Andrea W. Wortzel (admitted pro hac vice)
`andrea.wortzel@troutman.com
`andrea.wortzel@troutman.com
`1001 Haxall Point, 15th Floor
`1001 Haxall Point, 15th Floor
`Richmond, VA 23219
`Richmond, VA 23219
`Telephone:
`804.697.1406
`Telephone:
`804.697.1406
`Facsimile:
`804.697.1339
`Facsimile:
`804.697.1339
`
`Attorneys for Intervenor Defendant
`Attorneys for Intervenor Defendant
`National Hydropower Association
`National Hydropower Association
`
`In re: Clean Water Act Rulemaking
`In re: Clean Water Act Rulemaking
`
`UNITED STATES DISTRICT COURT
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`SAN FRANCISCO DIVISION
`Lead Case No. 3:20-CV-04636-WHA
`Lead Case No. 3:20-CV-04636-WHA
`Related Case Nos.
`Related Case Nos.
`3:20-CV-04869-WHA
`3 :20-CV-04869-WHA
`3:20-CV-06137-WHA
`3 :20-CV-06137-WHA
`INTERVENOR DEFENDANTS’
`INTERVENOR DEFENDANTS'
`MOTION TO STRIKE PLAINTIFFS’
`MOTION TO STRIKE PLAINTIFFS'
`OPPOSITION TO DEFENDANT’S
`OPPOSITION TO DEFENDANT'S
`MOTION FOR REMAND WITHOUT
`MOTION FOR REMAND WITHOUT
`VACATUR TO THE EXTENT
`VACATUR TO THE EXTENT
`PLAINTIFFS REQUEST REMAND
`PLAINTIFFS REQUEST REMAND
`WITH VACATUR
`WITH VACATUR
`Hearing Date: September 9, 2021
`Hearing Date: September 9, 2021
`Time: 8:00 AM
`Time: 8:00 AM
`Courtroom: 12, 19th Floor
`Courtroom: 12, 19th Floor
`Judge: The Hon. William H. Alsup
`Judge: The Hon. William H. Alsup
`
`Case No. 3:20-CV-04636-WHA
`Case No. 3:20-CV-04636-WHA
`Intervenor Defendants’ Motion to Strike Plaintiffs’ Request to Remand with Vacatur
`Intervenor Defendants' Motion to Strike Plaintiffs' Request to Remand with Vacatur
`
`1 2 3 4 5 6 7 8 9
`
`9
`10
`10
`11
`11
`12
`12
`13
`13
`14
`14
`15
`15
`16
`16
`17
`17
`18
`18
`19
`19
`20
`20
`21
`21
`22
`22
`23
`23
`24
`24
`25
`25
`26
`26
`27
`27
`28
`28
`
`SAN FRANCISCO,CALIFORNIA 94111-4057
`THREE EMBARCADERO CENTER,SUITE 800
`
`TROUTMAN PEPPER HAMILTON SANDERS LLP
`TROUTMAN PEPPER HAMILTON SANDERS LLP
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`

`

`Case 3:20-cv-04636-WHA Document 148 Filed 08/04/21 Page 2 of 6
`
`The States of Arkansas, Louisiana, Mississippi, Missouri, Montana, Texas, West Virginia,
`The States of Arkansas, Louisiana, Mississippi, Missouri, Montana, Texas, West Virginia,
`and Wyoming (collectively the “State Defendants”), American Petroleum Institute (“API”),
`and Wyoming (collectively the "State Defendants"), American Petroleum Institute ("API"),
`Interstate Natural Gas Association of America (“INGAA”), and National Hydropower
`Interstate Natural Gas Association of America ("INGAA"), and National Hydropower
`Association (“NHA”) (collectively “intervenor defendants”) respectfully submit this motion to
`Association ("NHA") (collectively "intervenor defendants") respectfully submit this motion to
`strike plaintiffs’ oppositions (Dkts. 145, 146, and 147) to the motion for remand without vacatur
`strike plaintiffs' oppositions (Dkts. 145, 146, and 147) to the motion for remand without vacatur
`filed by defendant Environmental Protection Agency (“EPA”), to the extent plaintiffs request
`filed by defendant Environmental Protection Agency ("EPA"), to the extent plaintiffs request
`remand with vacatur in the above-captioned case.
`remand with vacatur in the above-captioned case.
`
`I.
`I.
`
`INTRODUCTION
`INTRODUCTION
`Intervenor defendants intervened into this action to defend the Clean Water Act Section
`Intervenor defendants intervened into this action to defend the Clean Water Act Section
`401 Certification Rule, 85 Fed. Reg. 42,210 (July 13, 2020) (the “Rule”), issued by EPA.
`401 Certification Rule, 85 Fed. Reg. 42,210 (July 13, 2020) (the "Rule"), issued by EPA.
`Intervenor defendants do not oppose EPA’s motion to remand the Rule to the agency without
`Intervenor defendants do not oppose EPA's motion to remand the Rule to the agency without
`vacatur, because that relief would allow the Rule to remain in place while EPA conducts notice-
`vacatur, because that relief would allow the Rule to remain in place while EPA conducts notice-
`and-comment rulemaking to determine whether to modify or replace the Rule. Had EPA sought
`and-comment rulemaking to determine whether to modify or replace the Rule. Had EPA sought
`to remand the Rule with vacatur, intervenor defendants would have opposed and sought to defend
`to remand the Rule with vacatur, intervenor defendants would have opposed and sought to defend
`the Rule on the merits.
`the Rule on the merits.
`Plaintiffs oppose EPA’s motion and have asked the Court to deny it. But they have also
`Plaintiffs oppose EPA's motion and have asked the Court to deny it. But they have also
`asked the Court to remand the Rule with vacatur, without receiving full briefing on the merits
`asked the Court to remand the Rule with vacatur, without receiving full briefmg on the merits
`from EPA or intervenor defendants. Plaintiffs’ vacatur request is procedurally improper and is
`from EPA or intervenor defendants. Plaintiffs' vacatur request is procedurally improper and is
`deeply prejudicial to intervenor defendants, whose very reason for entering this case was to
`deeply prejudicial to intervenor defendants, whose very reason for entering this case was to
`ensure the Rule was not vacated judicially. If plaintiffs want this Court to vacate the Rule, they
`ensure the Rule was not vacated judicially. If plaintiffs want this Court to vacate the Rule, they
`must file a separate motion seeking that relief in compliance with this Court’s rules and standing
`must file a separate motion seeking that relief in compliance with this Court's rules and standing
`orders, which intervenor defendants would oppose. See Fed. R. Civ. P. 7(b); Civil L.R. 7-1(a);
`orders, which intervenor defendants would oppose. See Fed. R. Civ. P. 7(b); Civil L.R. 7-1(a);
`Supplemental Order to Order Setting Initial Case Management Conference in Civil Cases Before
`Supplemental Order to Order Setting Initial Case Management Conference in Civil Cases Before
`Judge William Alsup at 3, ¶ 11.
`Judge William Alsup at 3, ¶ 11.
`Accordingly, intervenor defendants respectfully request that this Court strike plaintiffs’
`Accordingly, intervenor defendants respectfully request that this Court strike plaintiffs'
`opposition briefs to the extent that those briefs request vacatur of the Rule. In the alternative, if
`opposition briefs to the extent that those briefs request vacatur of the Rule. In the alternative, if
`this Court intends to consider plaintiffs’ unmoved-for request for vacatur of any aspect of the
`this Court intends to consider plaintiffs' unmoved-for request for vacatur of any aspect of the
`Rule, it should permit intervenor defendants an opportunity to file opposition briefs, with
`Rule, it should permit intervenor defendants an opportunity to file opposition briefs, with
`-2-
`Case No. 3:20-CV-04636-WHA
`-2-
`Case No. 3:20-CV-04636-WHA
`Intervenor Defendants’ Motion to Strike Plaintiffs’ Request to Remand with Vacatur
`Intervenor Defendants' Motion to Strike Plaintiffs' Request to Remand with Vacatur
`
`1 2 3 4 5 6 7 8 9
`
`9
`10
`10
`11
`11
`12
`12
`13
`13
`14
`14
`15
`15
`16
`16
`17
`17
`18
`18
`19
`19
`20
`20
`21
`21
`22
`22
`23
`23
`24
`24
`25
`25
`26
`26
`27
`27
`28
`28
`
`SAN FRANCISCO,CALIFORNIA 94111-4057
`THREE EMBARCADERO CENTER,SUITE 800
`
`TROUTMAN PEPPER HAMILTON SANDERS LLP
`TROUTMAN PEPPER HAMILTON SANDERS LLP
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`

`

`Case 3:20-cv-04636-WHA Document 148 Filed 08/04/21 Page 3 of 6
`
`supportive declarations.
`supportive declarations.
`
`II.
`II.
`
`BACKGROUND
`BACKGROUND
`Plaintiffs filed three complaints in this now consolidated action: Idaho Rivers United,
`Plaintiffs filed three complaints in this now consolidated action: Idaho Rivers United,
`American Rivers, California Trout, and American Whitewater on July 13, 2020, Dkt. 1 (amended
`American Rivers, California Trout, and American Whitewater on July 13, 2020, Dkt. 1 (amended
`complaint filed September 29, 2020, Dkt. 75); twenty states and the District of Columbia on
`complaint filed September 29, 2020, Dkt. 75); twenty states and the District of Columbia on
`October 30, Dkt. 96; and Columbia Riverkeeper, Sierra Club, Suquamish Tribe, Pyramid Lake
`October 30, Dkt. 96; and Columbia Riverkeeper, Sierra Club, Suquamish Tribe, Pyramid Lake
`Paiute Tribe, Orutsaramiut Native Council on November 2, Dkt. 98. Plaintiffs’ complaints sought
`Paiute Tribe, Orutsaramiut Native Council on November 2, Dkt. 98. Plaintiffs' complaints sought
`an order vacating the Rule as unlawful and enjoining the EPA from enforcing it. Dkt. 75.
`an order vacating the Rule as unlawful and enjoining the EPA from enforcing it. Dkt. 75.
`Intervenor defendants moved to intervene to defend the Rule on August 28, 2020, Dkt. 27 (State
`Intervenor defendants moved to intervene to defend the Rule on August 28, 2020, Dkt. 27 (State
`Defendants); and September 4, Dkts. 56 (API and INGAA), and 75 (Case No. 3:20-cv-04869-
`Defendants); and September 4, Dkts. 56 (API and INGAA), and 75 (Case No. 3:20-cv-04869-
`WHA) (NHA). This Court granted the motions to intervene on September 17, 2020, Dkt. 62
`WHA) (NHA). This Court granted the motions to intervene on September 17, 2020, Dkt. 62
`(State Defendants); and October 9, Dkts. 78 (API and INGAA), and 113 (Case No. 3:20-cv-
`(State Defendants); and October 9, Dkts. 78 (API and INGAA), and 113 (Case No. 3:20-cv-
`04869-WHA) (NHA).
`04869-WHA) (NHA).
`On June 18, 2021, EPA notified this Court of its intent to file a Motion to Remand
`On June 18, 2021, EPA notified this Court of its intent to file a Motion to Remand
`Without Vacatur. Dkt. 141. On June 21, 2021, this Court set a briefing schedule for EPA’s
`Without Vacatur. Dkt. 141. On June 21, 2021, this Court set a briefing schedule for EPA's
`upcoming Motion, requiring the motion by July 1, intervenor defendants’ briefs by July 15, any
`upcoming Motion, requiring the motion by July 1, intervenor defendants' briefs by July 15, any
`briefs in opposition by July 26, and EPA’s reply brief by August 12. Dkt. 142. On July 1, EPA
`briefs in opposition by July 26, and EPA's reply brief by August 12. Dkt. 142. On July 1, EPA
`filed its Motion, seeking remand without vacatur of the Rule to the agency. Dkt. 143. Because
`filed its Motion, seeking remand without vacatur of the Rule to the agency. Dkt. 143. Because
`intervenor defendants do not oppose the relief EPA seeks, they decided not to burden this Court
`intervenor defendants do not oppose the relief EPA seeks, they decided not to burden this Court
`with further briefing. On July 26, 2021, plaintiffs responded with three separate briefs in
`with further briefing. On July 26, 2021, plaintiffs responded with three separate briefs in
`Opposition To Defendants’ Motion For Remand Without Vacatur. Dkts. 145–47. As part of
`Opposition To Defendants' Motion For Remand Without Vacatur. Dkts. 145-47. As part of
`plaintiffs’ claimed opposition, they requested, in one brief as their primary argument, Dkt. 147 at
`plaintiffs' claimed opposition, they requested, in one brief as their primary argument, Dkt. 147 at
`2–15, and in the other two in the alternative, Dkts. 145 at 11–16, 146 at 18–23, that this Court
`2-15, and in the other two in the alternative, Dkts. 145 at 11-16, 146 at 18-23, that this Court
`vacate the Rule. Because this Court’s briefing schedule required intervenor defendants to file
`vacate the Rule. Because this Court's briefing schedule required intervenor defendants to file
`their briefs before plaintiffs, intervenor defendants are unable to respond to plaintiffs’ new
`their briefs before plaintiffs, intervenor defendants are unable to respond to plaintiffs' new
`affirmative requests for relief under this Court’s briefing schedule.
`affirmative requests for relief under this Court's briefing schedule.
`
`III.
`ARGUMENT
`III. ARGUMENT
`A. Parties seeking relief in the Northern District of California must do so via motion or
`A. Parties seeking relief in the Northern District of California must do so via motion or
`-3-
`Case No. 3:20-CV-04636-WHA
`-3-
`Case No. 3:20-CV-04636-WHA
`Intervenor Defendants’ Motion to Strike Plaintiffs’ Request to Remand with Vacatur
`Intervenor Defendants' Motion to Strike Plaintiffs' Request to Remand with Vacatur
`
`1 2 3 4 5 6 7 8 9
`
`9
`10
`10
`11
`11
`12
`12
`13
`13
`14
`14
`15
`15
`16
`16
`17
`17
`18
`18
`19
`19
`20
`20
`21
`21
`22
`22
`23
`23
`24
`24
`25
`25
`26
`26
`27
`27
`28
`28
`
`SAN FRANCISCO,CALIFORNIA 94111-4057
`THREE EMBARCADERO CENTER,SUITE 800
`
`TROUTMAN PEPPER HAMILTON SANDERS LLP
`TROUTMAN PEPPER HAMILTON SANDERS LLP
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`

`

`Case 3:20-cv-04636-WHA Document 148 Filed 08/04/21 Page 4 of 6
`
`stipulation. Fed. R. Civ. P. 7(b)(1) (“A request for a court order must be made by motion.”); Civil
`stipulation. Fed. R. Civ. P. 7(b)(1) ("A request for a court order must be made by motion."); Civil
`L.R. 7-1(a) (listing types of permissible motions and stipulations); see also Civil L.R. 7-2(a)
`L.R. 7-1(a) (listing types of permissible motions and stipulations); see also Civil L.R. 7-2(a)
`(providing that all motions should “be filed, served and noticed in writing” unless “otherwise
`(providing that all motions should "be filed, served and noticed in writing" unless "otherwise
`ordered or permitted by the assigned Judge”). This Court is particularly attuned to the problems
`ordered or permitted by the assigned Judge"). This Court is particularly attuned to the problems
`caused by parties trying to obtain relief through the back door, to the point that it devoted a
`caused by parties trying to obtain relief through the back door, to the point that it devoted a
`paragraph of its own standing order to the problem as well. Supplemental Order to Order Setting
`paragraph of its own standing order to the problem as well. Supplemental Order to Order Setting
`Initial Case Management Conference in Civil Cases Before Judge William Alsup at 3, ¶ 11
`Initial Case Management Conference in Civil Cases Before Judge William Alsup at 3, ¶ 11
`(providing that the “title of a submission must be sufficient to alert the Court to the relief sought;
`(providing that the "title of a submission must be sufficient to alert the Court to the relief sought;
`for example, please do not bury a request for continuance in the body of the memorandum”).
`for example, please do not bury a request for continuance in the body of the memorandum").
`This policy is consistent throughout district courts in California. A party may not evade
`This policy is consistent throughout district courts in California. A party may not evade
`and nullify these requirements by “piggy-back[ing]” its requested relief through briefing opposing
`and nullify these requirements by "piggy-back[ing]" its requested relief through briefing opposing
`a motion filed by another party. Thomasson v. GC Servs. L.P., No. 05cv0940-LAB (CAB), 2007
`a motion filed by another party. Thomasson v. GC Servs. L.P., No. 05cv0940-LAB (CAB), 2007
`U.S. Dist. LEXIS 54693, *21 (S.D. Cal. July 13, 2007), rev’d, in part, on other grounds, 321 F.
`U.S. Dist. LEXIS 54693, *21 (S.D. Cal. July 13, 2007), rev'd, in part, on other grounds, 321 F.
`App’x 557 (9th Cir. 2008). Parties, in short, may not seek “affirmative relief through [their]
`App'x 557 (9th Cir. 2008). Parties, in short, may not seek "affirmative relief through [their]
`Opposition [briefings].” Smith v. Premiere Valet Servs., No. 2:19-cv-09888-CJC-MAA, 2020
`Opposition [briefings]." Smith v. Premiere Valet Servs., No. 2:19-cv-09888-CJC-MAA, 2020
`U.S. Dist. LEXIS 228465, at *42 (C.D. Cal. Aug. 4, 2020); see e.g., Interworks Unlimited, Inc. v.
`U.S. Dist. LEXIS 228465, at *42 (C.D. Cal. Aug. 4, 2020); see e.g., Interworks Unlimited, Inc. v.
`Digital Gadgets, LLC, No. CV 17-04983 TJX (KSx), 2019 U.S. Dist. LEXIS 167149, at *3–4
`Digital Gadgets, LLC, No. CV 17-04983 TJX (KSx), 2019 U.S. Dist. LEXIS 167149, at *3-4
`(C.D. Cal. June 11, 2019); Max Sound Corp. v. Google LLC, No. 5:14-cv-04412-EJD, 2018 U.S
`(C.D. Cal. June 11, 2019); Max Sound Corp. v. Google LLC, No. 5:14-cv-04412-EJD, 2018 U.S
`Dist. LEXIS 59335, *7–8 (N.D. Cal. Apr. 6, 2018) (rejecting stay request asserted by plaintiff in
`Dist. LEXIS 59335, *7-8 (N.D. Cal. Apr. 6, 2018) (rejecting stay request asserted by plaintiff in
`opposition papers to defendant’s motion, as procedurally improper under Civil Local Rule 7-
`opposition papers to defendant's motion, as procedurally improper under Civil Local Rule 7-
`1(a)); Largan Precision Co., Ltd. v. Fujinon Corp., No. C 10-1318 SBA (JL), 2011 U.S. Dist.
`1(a)); Largan Precision Co., Ltd. v. Fujinon Corp., No. C 10-1318 SBA (JL), 2011 U.S. Dist.
`LEXIS, at *14 (N.D. Cal. Mar. 31, 2011) (“[I]t is improper for [plaintiff], in opposition to a
`LEXIS, at *14 (N.D. Cal. Mar. 31, 2011) ("[I]t is improper for [plaintiff], in opposition to a
`discovery motion, to request an Order from this Court seeking affirmative, substantive
`discovery motion, to request an Order from this Court seeking affirmative, substantive
`remedies.”); Winward v. Pfizer, Inc., Nos. C 07-0878 SBA & C 07-0879 SBA, 2007 U.S. Dist.
`remedies."); Winward v. Pfizer, Inc., Nos. C 07-0878 SBA & C 07-0879 SBA, 2007 U.S. Dist.
`LEXIS 82885, at *6–7 (N.D. Cal. Oct. 22, 2007) (ignoring a non-moving party’s transfer request
`LEXIS 82885, at *6-7 (N.D. Cal. Oct. 22, 2007) (ignoring a non-moving party's transfer request
`on the ground that there was “no motion before the Court actually requesting a transfer of
`on the ground that there was "no motion before the Court actually requesting a transfer of
`venue”). Failure to follow this Court’s rules in this respect is a basis for denying any such relief.
`venue"). Failure to follow this Court's rules in this respect is a basis for denying any such relief.
`Smith, 2020 U.S. Dist. LEXIS 228465, at *42–43; Duong v. Groundhog Enters., Inc., No. 2:19-
`Smith, 2020 U.S. Dist. LEXIS 228465, at *42-43; Duong v. Groundhog Enters., Inc., No. 2:19-
`-4-
`Case No. 3:20-CV-04636-WHA
`-4-
`Case No. 3:20-CV-04636-WHA
`Intervenor Defendants’ Motion to Strike Plaintiffs’ Request to Remand with Vacatur
`Intervenor Defendants' Motion to Strike Plaintiffs' Request to Remand with Vacatur
`
`1 2 3 4 5 6 7 8 9
`
`9
`10
`10
`11
`11
`12
`12
`13
`13
`14
`14
`15
`15
`16
`16
`17
`17
`18
`18
`19
`19
`20
`20
`21
`21
`22
`22
`23
`23
`24
`24
`25
`25
`26
`26
`27
`27
`28
`28
`
`SAN FRANCISCO,CALIFORNIA 94111-4057
`THREE EMBARCADERO CENTER,SUITE 800
`
`TROUTMAN PEPPER HAMILTON SANDERS LLP
`TROUTMAN PEPPER HAMILTON SANDERS LLP
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`

`

`Case 3:20-cv-04636-WHA Document 148 Filed 08/04/21 Page 5 of 6
`
`cv-01333-DMG-MAA, 2020 U.S. Dist. LEXIS 76611, *37 (C.D. Cal. Feb. 28, 2020).
`cv-01333-DMG-MAA, 2020 U.S. Dist. LEXIS 76611, *37 (C.D. Cal. Feb. 28, 2020).
`B. Plaintiffs’ requests for vacatur of the Rule inappropriately seek affirmative relief
`B. Plaintiffs' requests for vacatur of the Rule inappropriately seek affirmative relief
`without complying with this Court’s rules and should therefore be struck. EPA properly filed a
`without complying with this Court's rules and should therefore be struck. EPA properly filed a
`motion seeking remand without vacatur, in compliance with this Court’s rules. In their
`motion seeking remand without vacatur, in compliance with this Court's rules. In their
`oppositions, plaintiffs do not merely oppose EPA’s request, but instead ask for new, drastic relief:
`oppositions, plaintiffs do not merely oppose EPA's request, but instead ask for new, drastic relief:
`vacatur of the Rule. Dkts. 145 at 11–16, 146 at 18–23, 147 at 2–15. Plaintiffs did not file a
`vacatur of the Rule. Dkts. 145 at 11-16, 146 at 18-23, 147 at 2-15. Plaintiffs did not file a
`motion seeking this affirmative relief and did not give to intervenor defendants the mandatory
`motion seeking this affirmative relief and did not give to intervenor defendants the mandatory
`notice that they would be seeking this relief. Civil L.R. 7.1(a) & 7.2(a). This violated this
`notice that they would be seeking this relief. Civil L.R. 7.1(a) & 7.2(a). This violated this
`Court’s rules, including under all of the authorities cited immediately above.
`Court's rules, including under all of the authorities cited immediately above.
`Plaintiffs’ decision to violate this Court’s rules is particularly prejudicial to intervenor
`Plaintiffs' decision to violate this Court's rules is particularly prejudicial to intervenor
`defendants. In seeking vacatur of the Rule, plaintiffs make numerous arguments throughout their
`defendants. In seeking vacatur of the Rule, plaintiffs make numerous arguments throughout their
`oppositions that go to the legality of the Rule and the claimed need for vacatur, Dkts. 145 at 11–
`oppositions that go to the legality of the Rule and the claimed need for vacatur, Dkts. 145 at 11-
`16, 146 at 18–23, 147 at 2–15, which intervenor defendants oppose. Had plaintiffs complied with
`16, 146 at 18-23, 147 at 2-15, which intervenor defendants oppose. Had plaintiffs complied with
`this Court’s rules and filed a motion seeking vacatur relief, intervenor defendants would have
`this Court's rules and filed a motion seeking vacatur relief, intervenor defendants would have
`opposed, and presented substantial authority against all of plaintiffs’ assertions. Plaintiffs may
`opposed, and presented substantial authority against all of plaintiffs' assertions. Plaintiffs may
`not avoid such adversarial litigation by “piggy-back[ing]” their requested relief—which would
`not avoid such adversarial litigation by "piggy-back[ing]" their requested relief—which would
`give plaintiffs everything they have sought in this litigation without having to prove up their
`give plaintiffs everything they have sought in this litigation without having to prove up their
`case—through opposition briefing. Thomasson, 2007 U.S. Dist. LEXIS 54693, *21.
`case—through opposition briefing. Thomasson, 2007 U.S. Dist. LEXIS 54693, *21.
`Accordingly, intervenor defendants respectfully request that this Court strike plaintiffs’
`Accordingly, intervenor defendants respectfully request that this Court strike plaintiffs'
`opposition briefs to the extent that those briefs request vacatur of the Rule. At the minimum, if
`opposition briefs to the extent that those briefs request vacatur of the Rule. At the minimum, if
`this Court intends to consider vacating the Rule in any respect, it should permit intervenor
`this Court intends to consider vacating the Rule in any respect, it should permit intervenor
`defendants an opportunity to file briefs, with supportive declarations, in opposition to plaintiffs’
`defendants an opportunity to file briefs, with supportive declarations, in opposition to plaintiffs'
`unmoved-for request for vacatur of the Rule.
`unmoved-for request for vacatur of the Rule.
`
`IV.
`CONCLUSION
`IV. CONCLUSION
`For the foregoing reasons, intervenor defendants respectfully request that this Court grant
`For the foregoing reasons, intervenor defendants respectfully request that this Court grant
`their motion to strike plaintiffs’ opposition to defendant’s motion for remand without vacatur, to
`their motion to strike plaintiffs' opposition to defendant's motion for remand without vacatur, to
`the extent plaintiffs request remand with vacatur.
`the extent plaintiffs request remand with vacatur.
`
`-5-
`Case No. 3:20-CV-04636-WHA
`-5-
`Case No. 3:20-CV-04636-WHA
`Intervenor Defendants’ Motion to Strike Plaintiffs’ Request to Remand with Vacatur
`Intervenor Defendants' Motion to Strike Plaintiffs' Request to Remand with Vacatur
`
`1 2 3 4 5 6 7 8 9
`
`9
`10
`10
`11
`11
`12
`12
`13
`13
`14
`14
`15
`15
`16
`16
`17
`17
`18
`18
`19
`19
`20
`20
`21
`21
`22
`22
`23
`23
`24
`24
`25
`25
`26
`26
`27
`27
`28
`28
`
`SAN FRANCISCO,CALIFORNIA 94111-4057
`THREE EMBARCADERO CENTER,SUITE 800
`
`TROUTMAN PEPPER HAMILTON SANDERS LLP
`TROUTMAN PEPPER HAMILTON SANDERS LLP
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`

`

`Case 3:20-cv-04636-WHA Document 148 Filed 08/04/21 Page 6 of 6
`
`Respectfully submitted,
`Respectfully submitted,
`
`Dated: August 4, 2021
`Dated: August 4, 2021
`
`TROUTMAN PEPPER HAMILTON SANDERS LLP
`TROUTMAN PEPPER HAMILTON SANDERS LLP
`
`By:
`/s/ Elizabeth Holt Andrews
`By: /s/ Elizabeth Holt Andrews
`Elizabeth Holt Andrews
`Elizabeth Holt Andrews
`Misha Tseytlin (admitted pro hac vice)
`Misha Tseytlin (admitted pro hac vice)
`Charles Sensiba (admitted pro hac vice)
`Charles Sensiba (admitted pro hac vice)
`Andrea W. Wortzel (admitted pro hac vice)
`Andrea W. Wortzel (admitted pro hac vice)
`Sean T.H. Dutton (admitted pro hac vice)
`Sean T.H. Dutton (admitted pro hac vice)
`Attorneys for Intervenor Defendant
`Attorneys for Intervenor Defendant
`National Hydropower Association
`National Hydropower Association
`
`JEFF LANDRY
`JEFF LANDRY
`ATTORNEY GENERAL OF LOUISIANA
`ATTORNEY GENERAL OF LOUISIANA
`
`By:
`/s/ Joseph S. St. John
`By: /s/ Joseph S. St. John
`Elizabeth B. Murrill, Solicitor General
`Elizabeth B. Murrill, Solicitor General
`(admitted pro hac vice)
`(admitted pro hac vice)
`Joseph S. St. John, Deputy Solicitor
`Joseph S. St. John, Deputy Solicitor
`General (admitted pro hac vice)
`General (admitted pro hac vice)
`Ryan M. Seidemann, Assistant Attorney
`Ryan M. Seidemann, Assistant Attorney
`General (admitted pro hac vice)
`General (admitted pro hac vice)
`Attorneys for State Intervenor Defendants
`Attorneys for State Intervenor Defendants
`States of Arkansas, Louisiana, Mississippi,
`States of Arkansas, Louisiana, Mississippi,
`Missouri, Montana, Texas, West Virginia,
`Missouri, Montana, Texas, West Virginia,
`and Wyoming
`and Wyoming
`
`HUNTON ANDREWS KURTH LLP
`HUNTON ANDREWS KURTH LLP
`
`By:
`/s/ Claire Ellis
`By: /s/ Claire Ellis
`Clare Ellis
`Clare Ellis
`George P. Sibley, III
`George P. Sibley, III
`(admitted pro hac vice)
`(admitted pro hac vice)
`Deidre G. Duncan (admitted pro hac vice)
`Deidre G. Duncan (admitted pro hac vice)
`Attorneys for Intervenor Defendants
`Attorneys for Intervenor Defendants
`American Petroleum Institute and
`American Petroleum Institute and
`Interstate Natural Gas Association of
`Interstate Natural Gas Association of
`America
`America
`
`-6-
`Case No. 3:20-CV-04636-WHA
`-6-
`Case No. 3:20-CV-04636-WHA
`Intervenor Defendants’ Motion to Strike Plaintiffs’ Request to Remand with Vacatur
`Intervenor Defendants' Motion to Strike Plaintiffs' Request to Remand with Vacatur
`
`1 2 3 4 5 6 7 8 9
`
`9
`10
`10
`11
`11
`12
`12
`13
`13
`14
`14
`15
`15
`16
`16
`17
`17
`18
`18
`19
`19
`20
`20
`21
`21
`22
`22
`23
`23
`24
`24
`25
`25
`26
`26
`27
`27
`28
`28
`
`SAN FRANCISCO,CALIFORNIA 94111-4057
`THREE EMBARCADERO CENTER,SUITE 800
`
`TROUTMAN PEPPER HAMILTON SANDERS LLP
`TROUTMAN PEPPER HAMILTON SANDERS LLP
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`