A federal judge in North Dakota issued a ruling blocking the Obama administration’s controversial Waters of the United States (WOTUS) rule, hours before it was due to take effect on August 28.
Judge Ralph Erickson of the District Court for the District of North Dakota found the 13 states suing to block the rule met the conditions necessary for a preliminary injunction. Those conditions include a high likelihood the states would be harmed if the court doesn’t act and that the states are likely to succeed when their lawsuit against the rule is finally decided.
The decision is a significant setback for the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers, who were planning to begin enforcing WOTUS in September. The law was aimed at reducing water pollution by extending federal jurisdiction over small waterways, including temporary streams, ephemeral waterways, and isolated, seasonal wetlands.
“Immediately upon the rule taking effect, the rule will irreparably diminish the states’ power over their waters,” Erickson wrote in his order granting the stay.
Erickson described the Obama administration’s interpretation of its Clean Water Act jurisdiction as “exceptionally expansive.”
“This is welcome news, especially given the demanding requirements for an injunction,” said William Perry Pendley, president of the Mountain State Legal Foundation. “That the District Court found the states were likely to win and that the equities favored the states shows how outrageous the conduct of Obama’s EPA [is].”
Former North Dakota state Rep. Bette Grande (R-Fargo), now a research fellow with The Heartland Institute, which publishes Environment & Climate News, also welcomed the decision.
Grande said in a press statement, “U.S. District Court Judge Ralph Erickson knows the Constitution, and his opinion on EPA’s proposed Waters of the United States rule is a fresh and clean breath of common sense from ‘fly-over country.’
“Judge Erickson’s ruling is consistent with prior U.S. Supreme Court ruling[s] against the EPA [in 2001 and 2006],” said Grande in her statement.
Obama Defies the Court
Obama administration representatives defiantly announced EPA would largely enforce the regulation as planned, arguing Erickson’s ruling only applies to the 13 states winning the injunction: 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 Obama administration argues the rule is justified under the Clean Water Act to protect small waterways from pollution.
Controversy Surrounds WOTUS
Even before WOTUS was finalized, controversy surrounded it. Many state and federal legislators and business, agriculture, and development interests had publicly opposed the rule. They argued it would greatly expand the national government’s authority over privately owned water and land.
The U.S. Chamber of Commerce, the National Association of Manufacturers, the American Farm Bureau Federation, Dairy Farmers of America, pesticide manufacturers, mining companies, home builders, governors, local governments, water utilities, flood control districts, the timber industry, railroads, real estate developers, golf course operators, food and beverage companies, more than 40 energy companies, and two dozen electric power companies have all criticized EPA’s plan as overreach in public statements or congressional and administrative testimony.
The North Dakota-led lawsuit, which succeeded in garnering the stay, was one of 10 filed by 29 states and business interests since EPA finalized the rule on May 27.
Erickson’s preliminary injunction will only last as long as the litigation persists, and it can be overturned.
Appeal Moves Forward
The cases have been consolidated into one lawsuit, which will be heard in the Court of Appeals for the Sixth Circuit in Cincinnati. States and other plaintiffs suing in other federal jurisdictions have not received as favorable a response to their requests for an injunction, with other cases being dismissed. Many of those judges have deferred to the Sixth Circuit.
The same week as Erickson’s ruling, judges in the U.S. District Court for the Northern District of West Virginia and in the District Court for the Southern District of Georgia denied requests to stay or enjoin the rule as requested by Murray Energy Corp and 11 other states.
Ron Arnold, executive vice president of the Center for the Defense of Free Enterprise, says he’s concerned about the limited nature of the stay.
“Two other federal judges hearing similar suits from other states deferred to EPA, prompting agency bureaucrats to declare they will only halt the rule in the 13 states that requested the injunction,” Arnold said. “‘It brings to mind the apocryphal statement attributed to President Andrew Jackson defying a Supreme Court ruling, ‘[Chief Justice] John Marshall has made his decision; now let him enforce it!'”
Calls for More Action
“The judge’s decision to block the rule, which was challenged by 13 states, is encouraging, especially as EPA’s credibility has been questioned in the past month,” said Julia Slingsby, spokeswoman for Rob Bishop (R-UT), the chairman of the House Natural Resources Committee.
“The EPA needs to be stopped before it does more harm to our nation’s precious water resources.”
Grande says EPA needs to be reined in and that Congress is the appropriate branch of government to apply the brakes.
“EPA’s WOTUS rule is just the latest in a never-ending process of mission creep,” said Grande in her statement.
“The courts, rightly, can only do so much under the Constitution,” said Grande. “But Judge Erickson’s opinion gives us some breathing room as we wait for Congress to regain its constitutional authority. Congress must stop dithering and bloviating and rein in the regulatory agencies.”
H. Sterling Burnett, Ph.D. ([email protected]) is managing editor of Environment & Climate News.