The Sixth Circuit Court of Appeals in Cincinnati issued a nationwide stay on the Obama administration’s August 28 Waters of the United States (WOTUS) rule.
The court’s ruling is a second setback for President Barack Obama’s effort to apply the power of the Clean Water Act to isolated streams and other small bodies of water.
WOTUS was created by the Environmental Protection Agency (EPA) and the Army Corps of Engineers as part of their effort to clarify and expand federal jurisdiction over isolated and temporary wetlands and waters in light of U.S. Supreme Court’s decisions in 2001 and 2006, which determined the agencies had adopted an unduly broad interpretation of the scope of their authority.
According to Kathleen Hartnett White, director of the Armstrong Center for Energy & the Environment at the Texas Public Policy Foundation, “EPA’s redefinition of the Waters of the United States is about land use control and not about water.
“Ignoring multiple Supreme Court rulings instructing EPA to back off private land, the Obama administration’s EPA decided to offer yet another definition of waters that would vastly extend federal jurisdiction over land across the country,” White said.
The first setback for EPA came on August 27, the day before WOTUS enforcement was scheduled to begin, when Chief Judge Ralph Erickson of the U.S. District Court in North Dakota issued a stay on the rule for 13 states under his jurisdiction. Erickson’s ruling said EPA’s procedures in crafting the rule were “inexplicable, arbitrary and devoid of a reasoned process.” Erickson also ruled a last-minute change in the final rule expanding the breadth of the federal government’s jurisdiction should have been followed by another round of comments from the public.
‘Substantial Possibility of Success’
Obama administration representatives defiantly announced EPA would largely enforce the regulation as planned, arguing Erickson’s ruling was limited to the 13 states under his jurisdiction. On October 9, a nationwide injunction was issued by the Court of Appeals for the Sixth Circuit in Cincinnati. The court found EPA’s new guidelines are “at odds” with key Supreme Court rulings.
In expanding the stay nationwide, the Sixth Circuit Court of Appeals wrote, “We conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims.”
“The new rule raised serious questions concerning whether the Army Corps and the EPA addressed the valid concerns the U.S. Supreme Court raised against the agencies’ previous regulations of wetlands and isolated bodies of water,” said Jonathan H. Adler, the director of the Center for Business Law and Regulation at Case Western University. “The appeals court had legitimate concerns whether EPA and the Corps in developing WOTUS were sufficiently attentive to the Supreme Court’s rulings concerning limits to their authority.”
EPA says although it believes the rule is legal and necessary, it will respect the court’s decision.
The National Federation of Independent Business, one of the groups suing to halt the rule, welcomed the court’s decision against EPA.
“Small businesses everywhere this morning are breathing a sigh of relief,” Karen Harned, executive director of the group’s legal foundation, said in a statement.
“The court very properly acknowledged that the WOTUS rule has created a ‘whirlwind of confusion’ and that blocking its implementation in every state is the practicable way to resolve the deep legal question of whether it can withstand constitutional muster.”
Thirty-one states and numerous private entities, including the American Farm Bureau Federation, American Petroleum Institute, American Road and Transportation Builders, National Alliance of Forest Owners, National Home Builders Association, National Association of Manufacturers, and the Public Lands Council, sued to block the rule, saying it was a major overreach of federal power.
Nationwide Stay Justified
The temporary stay is not the final word on the regulation; it maintains the status quo pending a full hearing and ruling by the court.
The majority concluded a nationwide stay serves the purpose of maintaining nationwide uniformity while the litigation proceeds, rather than having one standard apply in 37 states and another in the 13 states under the stay issued by the District Court of North Dakota.
The court says the stay also was justified by the need to balance the harms the rule could inflict. According to the decision, WOTUS, which the court says is an unexpected and massive expansion of government authority on the nation’s waters, would place a substantial burden on federal and state governmental bodies, as well as on private parties and the public in general.
“Yet, the sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being,” the court wrote.
Responding to the stay, Texas Attorney General Ken Paxton (R), a party to one of the lawsuits on behalf of the State of Texas, said in a statement, “We are pleased that the Sixth Circuit agreed with Texas and the other states that EPA’s new water rule should be stayed. The court’s ruling is good news for property owners whose land would have been subject to extensive new federal regulations due to this overreaching new water rule.”
Cynthia Meyer, deputy press secretary for Paxton, said, “The EPA’s ill-conceived water rule vastly expands the jurisdiction of the federal government to regulate almost any piece of land that gets wet and puddles,” said Meyer. “A federal court has rightly halted this rule nationwide, and the AG’s office will continue to fight this EPA power grab in our own case.”
H. Sterling Burnett, Ph.D. ([email protected]) is a research fellow with The Heartland Institute and managing editor of Environment & Climate News.
Judges David W. McKeague and Richard Allen Griffin, State of Ohio, et al. v. U.S. Army Corps of Engineers, et al. October 9, 2015: https://heartland.org/policy-documents/united-states-court-appeals-sixth-circuit-reenvironmental-protection-agency-and-dep