Will They Ever Get Tired of Losing?

Published April 12, 2023

The Detroit Lions have not won a playoff game since 1991 and have never been to the Super Bowl. But no defeat stops them from trying again and again. Just like the EPA.

A month ago in this space, we talked about a new round of litigation regarding the Administration’s latest attempt to control all water in the country, under the thoroughly discredited theory that the Clean Water Act gave EPA such broad authority. Lawsuits over the re-issued definition of “Waters of the United States” (WOTUS) have been filed by 23 states, almost the same number as sued the Obama Administration over the same issue in 2015. Colorado led that fight, and won at the U.S. Supreme Court, because as the court ruled, the proposed definition goes beyond any power Congress ever gave EPA.  

Two hints already show how this latest attempt will turn out, too. In the first judicial ruling on these new lawsuits, a federal judge in Texas delivered the first blow, agreeing that EPA’s WOTUS definition is “Destructive federal overreach.” He blocked the Biden administration from implementing EPA control over all water, for now in Texas and Idaho, the first two states in court.

The second major setback for the Administration came from Congress, where both Houses voted to overturn the EPA. The Democratic-controlled Senate passed the measure by a margin of ten votes, showing bipartisan opposition to EPA’s late-night re-issuance of the Obama rule (EPA quietly announced its final approval late on December 30). The President vetoed the bill, and the Senate’s margin is not enough to override the veto. But it nevertheless sent a signal, not only to the White House, but also to the courts, that Congress does not intend EPA to regulate every stream, creek, pond, and puddle in America. That was never the intent of the Clean Water Act, which applies specifically to navigable waters, and it still isn’t.

The judge blocked the rule only in the first two states, but the same outcome is almost certain in all the others. The Supreme Court already heard arguments in the case of the Sackett family, which EPA has harassed for over a decade for the unpardonable sin of wanting to build a house on their own property, which EPA claims is a regulated wetland under WOTUS (never mind that there is no wetland there, nor any navigable water). The Court already ruled against EPA on procedural issues and has now heard arguments in the case itself. Justices were very skeptical of EPA’s view during those arguments, and will eventually rule that EPA overstepped its authority.

No other ruling is possible if the Court addresses the underlying issue of whether EPA has this authority at all. That’s because the Clean Water Act of 1972, which empowers EPA to regulate water, contains the phrase “waters of the United States” in twelve places. Nine use the phrase “navigable waters of the United States.” (NWOTUS) and the other three refer specifically to the Gulf Inter-coastal Waterway. There are no non-navigable “waters of the United States” in the law.

These cases have attracted media attention for years, but most writers miss that central point. EPA and the White House say this is about “safeguarding our nation’s waters,” a classic misdirection. One recent writer said the WOTUS rule was issued “in an effort to curb water pollution.” Nothing about the Sackett case or hundreds of others like it has anything to do with pollution. This is about who gets to regulate. The constitutions of almost every state, and a huge body of federal laws, make it clear that inland intrastate waters belong to the states.

Another environmental reporter chalked it all up to changes in partisan power, writing that “The Trump administration had reversed the Obama-era rules, loosening federal protections on water sources, such as puddles and ditches, that it didn’t consider navigable waterways” (as if someone else might consider puddles and ditches navigable), completely ignoring the fact that federal courts had already blocked the rule. A CNN reporter tried to explain, “The Clean Water Act allows the EPA to regulate ‘waters of the United States,’ but the exact definition of such waters remains unclear.” Wrong again. The Act clearly defines waters of the U.S. as “navigable,” and despite several major amendments over the years, Congress has never changed that plain language.

In blocking the new rule, the federal judge in Texas also predicted the eventual outcome: “The States have already shown irreparable harm because they will expend unrecoverable resources – monetary and otherwise – complying with a rule unlikely to withstand judicial scrutiny.”

EPA will lose this battle again, but it will never give up this power grab. EPA is the government’s Detroit Lions.