States opposing the Environmental Protection Agency’s (EPA) far-reaching Waters of the United States (WOTUS) rule are fighting to have a preliminary injunction on the rule in 13 states expanded nationwide.
Attorneys general from 18 states filed a motion with the 6th Circuit Court of Appeals in Ohio in early September asking the court to place a stay on WOTUS, barring EPA from enforcing it for 50 days. The move came after U.S. District Court-District of North Dakota Chief Judge Ralph Erickson placed a stay on WOTUS in 13 states under his jurisdiction but, in a separate ruling, refused to expand the injunction nationwide.
‘Inexplicable, Arbitrary’ Rule
Legal complications began on August 27, when Erickson blocked WOTUS from taking effect, saying EPA’s procedures in crafting the rule were “inexplicable, arbitrary and devoid of a reasoned process.” A last-minute change in the final rule affecting the breadth of the jurisdiction of EPA and the U.S. Army Corps of Engineers should have triggered another round of public comment, Erickson’s ruling stated.
“The rule asserts jurisdiction over areas that are remote and intermittent waters,” said Erickson in his ruling. “No evidence actually points to how these remote and intermittent wetlands have any nexus to a navigable-in-fact water.”
The 13 states affected by Erickson’s ruling are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming. Despite Erickson’s strong criticism of EPA, he declined to expand the stay to states challenging WOTUS in other jurisdictions.
“Courts have broad discretionary power in crafting a preliminary injunction, including the authority to grant nationwide applicability of the injunction,” Erickson stated in his ruling limiting the scope of the preliminary injunction to the plaintiffs. “It goes without saying, however, that the competence to act should not be conflated with the idea that it is propitious to act. In the instant case, there are significant potential reasons to limit the scope of the preliminary injunction to the entities actually before the court.”
James Taylor, Senior Fellow for The Heartland Institute, which publishes Environment & Climate News, says Erickson was right to impose the initial stay.
“The federal court acted wisely and properly in imposing an injunction on EPA’s water grab,” Taylor said. “Absent an upfront injunction, individuals and businesses will likely comply with EPA’s illegal water grab merely to avoid astronomical daily penalties imposed by EPA while the issue plays out in the courts.”
Other Lawsuits Continue
The battle continues for other states fighting WOTUS.
“The EPA WOTUS rule, which went into effect on August 28, should be halted nationwide while lawsuits filed by states, including Alabama, against the EPA rule are consolidated and reviewed by the federal courts,” Alabama Attorney General Luther Strange said in a statement. “The WOTUS rule is an unprecedented effort to expand EPA’s regulatory authority at the expense of states’ legal rights and the rights of property owners.”
Four lawsuits have been filed against the WOTUS rule, covering 31 states. Numerous private entities affected by the rule have also entered the legal fray. A suit filed in Texas included the American Farm Bureau Federation, American Petroleum Institute, Leading Builders of America, American Road and Transportation Builders, National Alliance of Forest Owners, National Home Builders Association, National Association of Manufacturers, and the Public Lands Council among its plaintiffs.
EPA’s ‘Sword of Damocles’
“The uncertainty surrounding the future of WOTUS hangs like the sword of Damocles over landowners throughout the United States,” said Craig Rucker, executive director of the Committee for a Constructive Tomorrow. “EPA’s rule is so Draconian that, if it goes into effect in anything like its current form, it will force a substantial number of people to abandon their farms, ranches, and other businesses.
“Of all the rules and regulations issued by EPA in its 45-year history, none surpasses WOTUS in the harm it will do to the lives of ordinary people,” Rucker said. “WOTUS is a game-changer in which EPA has rigged the game in its favor and is placing tens of millions of people under its regulatory thumb.”
Bonner R. Cohen, Ph.D. ([email protected]) is a senior fellow of the National Center for Public Policy Research in Washington, DC.