The 2-1 panel decision in favor of the attorneys general of 18 states follows a similar ruling issued in late August in North Dakota federal court in a separate lawsuit involving 13 states. That stay was ordered a day before the rule was to have gone into effect. The most recent ruling, which was a consolidated appeal of four separate lawsuits by the states and other interest groups, greatly expands the geographically-limited North Dakota decision and instead blocks the majority of the country from the Obama-led initiative.
In a classic territorial battle between state and federal-level authority, the 6th Circuit Court of Appeals in Cincinnati has temporarily blocked the Environmental Protection Agency’s (EPA) “Clean Water Rule,” a plan to expand federal authority over smaller bodies of water that are currently controlled by state and local authorities. The 2-1 panel decision in favor of the attorneys general of 18 states follows a similar ruling issued in late August in North Dakota federal court in a separate lawsuit involving 13 states. That stay was ordered a day before the rule was to have gone into effect. The most recent ruling, which was a consolidated appeal of four separate lawsuits by the states and other interest groups, greatly expands the geographically-limited North Dakota decision and instead blocks the majority of the country from the Obama-led initiative. The 6th Circuit ruled that “A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new rule and whether they will survive legal testing.” While disappointed, EPA spokeswoman Melissa Harrison replied to the decision, “The agencies respect the court’s decision to allow for more deliberate consideration of the issues in the case and we look forward to litigating the merits of the Clean Water Rule.”
The decision does not guarantee the pushback led by Texas’s Ken Paxton and Mississippi’s Jim Hood, among others will ultimately be successful, but it does send a foreboding signal to the EPA and the Army Corps. The panel’s majority also wrote in its opinion, “We conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims,” adding that, “A stay allows for a more deliberate determination whether this exercise of executive power, enabled by Congress and explicated by the Supreme Court, is proper under the dictates of federal law.” The plan is seeking to add about 3 percent of the total amount of U.S. waterways to the Army Corps of Engineer’s authority, mostly consisting of wetlands and streams that have a “direct and significant” connection with larger bodies of water downstream, according to the EPA. The EPA’s rule changes were intended to be a clarification of the 1972 Clean Water Act’s definition of “waters of the United States.” A 2014 Supreme Court ruling mandated that the EPA further define the term, in order to avoid severe limitations of the agency’s use of the Clean Water Act’s authority.
Along with the pushback at the state level, the rule changes pitted environmental groups against industry lobbyists. Among the strongest voices against the rule changes has been the American Farm Bureau, who has raised concerns about increased federal permitting and interference in agricultural-related activities. That organization’s “ditch the rule” media campaign was by far the most successful advertising tool to garner public support for the fight. Essentially, the campaign insinuated that the EPA and the Corps was threatening private property, including drains, ditches and even lands that only contain water when it rains. The EPA for its part also launched a campaign on its website refuting the Farm Bureau’s claims, citing that the rule will not focus on most ditches, affect private property rights, or place additional requirements for agriculture. Beyond the Farm Bureau, the National Federation of Independent Business, one of the parties suing the EPA, issued a statement penned by the organization’s legal director Karen Harned, saying “Small businesses everywhere this morning are breathing a sigh of relief.”
On the opposite end of the spectrum, Madeleine Foote of the League of Conservation voters expressed her disappointment, saying “We strongly disagree with this irresponsible decision that lets polluters continue to put the drinking water of one in three Americans at risk.” Attorney Jon Devine of the Natural Resources Defense Council, who is part of the EPA’s defense team, also expressed his disappointment and reiterated the importance of the rule, saying “The Clean Water Rule is key to ensuring clean drinking water for one-in-three Americans and protecting essential buffers against flooding.” Despite the court-ordered stay, the case will proceed, with the 6th Circuit determining if it has jurisdiction to make a ruling. Until that decision is made, however, the EPA and the Army Corps will not be permitted to regulate the affected waterways.
Natural Gas Intelligence – Richard Nemec
The Hill – Timothy Cama
Wall Street Journal – Brent Kendall and Amy Harder