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EPA says federal court injunction against water rules doesn’t apply nationally

EPA says federal court injunction against water rules doesn’t apply nationally

EPA says only applies in 13 states that are parties to the case, so EPA going ahead elsewhere.

I recently reported that EPA regulations that were poised to go into effect at the end of last week, broadening the scope of the agency’s power under the “Waters of the United States” Act.

A federal judge has blocked its implementation hours before it was due to take effect:

Yesterday, a federal district court in North Dakota granted a preliminary injunction blocking implementation of a new Environmental Protection Agency rule defining “waters of the United States” under the Clean Water Act. This rule is important because many of the CWA’s regulatory prohibitions, including the prohibition on developing wetlands without a federal permit, apply only in “waters of the United States” (WOTUS). The Supreme Court rebuked the EPA and the Army Corps of Engineers for applying an unduly expansive WOTUS definition (see SWANCC v. U.S. Army Corps and Rapanos v. United States), and this rule is an effort to reassert and clarify the scope of federal regulatory jurisdiction under the CWA.

The suit in question was filed by 13 states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming), which claimed, among other things, that the WOTUS rule is a threat to state sovereignty because it asserts federal jurisdiction over wetlands and waters (and even some relatively dry land) that should be subject to state government control. As a general matter (and as the Supreme Court has recognized) land-use control is generally beyond the scope of federal power. In this case, the district court concluded that the states were likely to succeed on the merits as the EPA had adopted an “exceptionally expansive” view of its own jurisdiction under the CWA. According to the court, the WOTUS rule “allows EPA regulation of waters that do not bear any effect on the ‘chemical physical, and biological integrity’ of any navigable-in-fact water,” and therefore exceeds the limits on federal regulatory authority identified by the Supreme Court in Rapanos.

Judge Ralph Erickson of the District Court for the District of North Dakota found that the states suing would probably have been harmed if courts didn’t act promptly. The ruling lasts only as long as the 13-state lawsuit persists and may be overturned.

However, taking a page from President Obama’s playbook, the agency is going forward with implementation anyway:

In a statement shortly after the ruling, the EPA was defiant and said that the injunction only applies in the 13 states that filed for it: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

“In all other respects, the rule is effective on August 28,” EPA Press Secretary Melissa Harrison said in the statement. “The agencies are evaluating these orders and considering next steps in the litigation.”

The EPA’s interpretation appears to conflict with responses from most stakeholders, lawmakers and others.

An under-reported aspect to the push-back on WOTUS is that the Army Corps of Engineers, tasked to implement the regulation, is angry at the EPA’s disregard for Corps concerns over the final WOTUS rule and its portrayal that the process represented a joint endeavor.

The Corps’ legal analysis found that if “serious flaws” were not corrected, the rule would be “legally vulnerable, difficult to defend in court, difficult for the Corps to explain or justify, and challenging for the Corps to implement.”

It further found the final rule abandoned “sound principles of science” in the proposed draft and “introduced indefensible provisions into the rule.”

Among the allegations, the Corps contended:

• That the rule removes Clean Water Act protections from some bodies of water where it is now enforced. That’s because the rule limits coverage to lakes, ponds and other waterways that are within 4,000 feet of a navigable water or tributary. The Corps says there’s no scientific basis for the limit, and no legal authority for the agencies to abandon its current jurisdiction.

• That because the EPA acknowledged that abandoning jurisdiction could create “significant adverse effects on the human environment, the National Environmental Policy Act requires the Corps to perform an Environmental Impact Statement

• That while the rule envisions the agencies extending regulation to isolated bodies of water that have a “significant nexus” with navigable waters of the United States, the definitions of such bodies as having “no hydrological connection with navigable waters” makes it unlikely the agencies will be able to establish a nexus that will withstand a court challenge.

Abandoning sound science and good engineering practices will be EPA’s legacy under Obama.

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Comments

Undisguised anti-American radicals attempting control of social life by arrogant fiat. No government agency has the authority to write and impose its own rules. Enough. Defund and dismantle the EPA. Merge its basic enforcement duties into another department.

    Ragspierre in reply to pesanteur. | August 30, 2015 at 11:19 am

    “No government agency has the authority to write and impose its own rules.”

    Yeh, actually they do. This was ONE (of several) really bad mistakes Congress made during the last century.

    Congress needs to revisit that and reverse it. It was arguably the single thing that made the explosion of the administrative state possible.

      Hear! Hear! (No cats were involved in writing this comment.)

        Heh! I really love cats. With the right wine…

          HEY I resemble that remark…signed Daves female maine coon mix brown eyed tortie.

          Ragspierre in reply to Ragspierre. | August 30, 2015 at 3:33 pm

          Really, I do love cats. Last cats I owned were a breeding pair of Abyssinians. Damnedest cats I’ve ever had. The male followed me all over 15 acres like a dog. When he broke a rear leg, he STILL followed me. He would also FIGHT me for food if I was in bed with a snack. Idiot cat.

          I got 3, the coon mix in avatar got taken from its mother at 4 weeks and I got her that week (took her to make sure she had good home) and she is VERY attached to me.
          take a coon natural tendency to attach to one person and add on such a young kitten identifying me as “mother” and its extreme.
          shes jumped bulldogs and german shepards that barked or growled at me, if any other cat gets near me and she is not 100% sure they are docile she will rub on me while purring and meowing and, heres the freaky part, at SAME time be hissing and growling at other cat. funny as hell to see, irritating as hell to deal with.
          very protective of me.
          I step out call her name and if she can hear me she runs full speed to me. funny to see a brown streak running full bore 4-500 feet away through the field to get to you.
          she also drools on me a LOT while purring and cuddling me. sometimes I get soaked.

      Rather amusing, in a sense, that the EPA is using the Army Corps of Engineers’ good name as a cudgel in court filings, but the Army Corps of Engineers is leery about the EPA’s whole way of doing this. In another sense, the EPA is happily dragging the Corps’ name through the mud in order to defy a federal judge’s order, one I actually bothered to read out of curiosity as to there being any wiggle room for acting like “federal” court means it applies only to the states that bothered to file.

      I found no such wiggle room, incidentally, but the EPA clearly expects the Corps to fully cooperate in open defiance of a federal judge granting an injunction against enforcement of the rule, full stop, no qualifiers.

      Estragon in reply to Ragspierre. | August 30, 2015 at 4:30 pm

      The reality is Congress can’t do it. The details of enforcement have to be left to the agency. There is a process for writing regulations that requires in most cases hearings and public input.

      The problem is the system was designed assuming good faith. That’s where the process went awry: leftist bureaucrats want to avoid public and congressional scrutiny and impose their ideological will.

      A better review process is needed, to be sure. But the very best weapon would be sunsetting all regulations after an initial period unless re-proposed by the agency AND ratified by Congress. Even then, some odious nonsense is bound to slip through.

It further found the final rule abandoned “sound principles of science” in the proposed draft and “introduced indefensible provisions into the rule.”
______________________________________________

THAT is a great nutshell of the EPA since its inception.

Right behind the IRS, the EPA needs to be burned down. Metaphorically, of course. Unless they resist…

    Hear! Hear! Again! We don’t need no stinkin’ EPA.

    I’ll water my flowers and not litter and recycle all by myself.

    DaMav in reply to Ragspierre. | August 30, 2015 at 2:28 pm

    Hear hear!

    I remember the story of a meeting with the EPA back in the 70s where the topic was effluent discharge pH from a local chemical plant. The engineers from the plant were proposing lowering allowable pH from a more basic reading of 7.6 to 7.2. The EPA Rep was furious, demanding that “irresponsible private industry stop trying to shirk responsibility” and lower the effluent pH to near zero!

    I’m not sure they have improved their science but they surely have grabbed more power.

The EPA is behaving like an organization which has accomplished its original mission, and taken on a new mission, namely protecting its income stream.

It happened with the March of Dimes, NOW, MADD, and PP.

To focus on the most innocuous of the examples I gave, the March of Dimes accomplished its original goal (eradicating polio in the US) and then turned to raising funds to deal with birth defects.

The US has met its pollution reduction requirements, and so the EPA sought tighter restrictions, and the power to control non pollutants, such as carbon dioxide, and transient non-pollutants (water in rain puddles).

Congress needs to give them re-direction. I would not get rid of the EPA, because I know that jerks are jerks, and we need them to monitor compliance. I would direct them to answer the question, “What does an immediately acceptable industrial use permit look like?” because the EPA has been used to cause extreme delay and expense to manufacturers.

Where are the AG’s for other states with their writs? this ought to be a slam dunk win for them

    OldNuc in reply to Dr P. | August 30, 2015 at 2:34 pm

    The short answer is they are either watermelons or environazis and in agreement with this EPA overreach. See Iowa on that list?

Mission Creep. Not a new problem.

I wonder if we could build in some kind of sunsetting where a government agency could declare victory, and if Congress agreed the agency would be rolled up — with large completion bonuses for everyone involved.

    Ragspierre in reply to clintack. | August 30, 2015 at 3:08 pm

    Yes. As I suggested many times.

    Ragspierre in reply to clintack. | August 30, 2015 at 4:30 pm

    To expound a bit, I’ve suggested that alllllll Federal law should be sun-setted. Ten years seems a good run.

    That gives Congress a chance to review their drafting, what’s been done to it by the administrative state AND the courts, and bring it back into line with intent (and in an at least putatively accountable elected body).

    No exceptions. No “omnibus” re-passage. Every law reconsidered on its own, full tilt formalities for re-passage.

    It would have the added virtues of making Congress ONLY re-pass really well-supported law, striking down court precedents, jerking back the agencies, AND making the Congress too busy to keep passing new crap.

      Miles in reply to Ragspierre. | August 30, 2015 at 5:07 pm

      And just to point out Rags;

      I think this should apply to the states via the 14th amendment.

      Also, for those people who were prosecuted and/or convicted under a law that was not re-passed, that their records should be expunged and they should receive full reimbursement. And I mean for their time in prison as well as any fines, court costs and legal fees.

      That might also make Congress and the several States more carefully consider passing some idiotic law.

        Ragspierre in reply to Miles. | August 30, 2015 at 5:26 pm

        Well, I don’t agree. I am a federalist, and I do believe in representative democracy.

        I also believe that conduct has consequences. So I’m a Conservative, not a Libertarian.

          Miles in reply to Ragspierre. | August 31, 2015 at 5:45 pm

          Oh, I believe conduct has consequences as well.

          But if the government passes a law so stupid that it can’t make it past a sunset, the law shouldn’t have been passed in the first place and the consequences someone endures due to that stupid law should be recompensed as fully as possible. The point being that a rule like that would be another point in hopefully making government a whole lot less likely to pass an unpopular, or stupid law in the first place.

          The federalist part of that I don’t understand. A state and it’s bureaucrats should be under the same restrictions as they’re more likely to be what someone runs afoul of.

    Valerie in reply to clintack. | August 30, 2015 at 5:14 pm

    I LIKE this idea.

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