Courts block EPA water rule that would put millions of acres under federal control

It's a regulation considered the most ambitious expansion of EPA's control over American waterways in history and a federal court has issued an injunction blocking its implementation.

The Hill:

“We conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims,” the judges wrote in their decision, explaining that the Environmental Protection Agency’s (EPA) new guidelines for determining whether water is subject to federal control — based mostly on the water’s distance and connection to larger water bodies — is “at odds” with a key Supreme Court ruling.

The judges said they have yet to decide whether they have jurisdiction to review the regulation, but a stay would make it easier to determine that.

“A stay allows for a more deliberate determination whether this exercise of executive power, enabled by Congress and explicated by the Supreme Court, is proper under the dictates of federal law,” the court said.

“A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing. A stay honors the policy of cooperative federalism that informs the Clean Water Act and must attend the shared responsibility for safeguarding the nation’s waters.”

The decision expands a stay that a North Dakota judge imposed in August, the day before the rule took effect, and that only applied to 13 states.

The EPA said it will respect the court’s decision, but it believes the rule is legal and necessary.
 
“The agencies respect the court’s decision to allow for more deliberate consideration of the issues in the case and we look forward to litigating the merits of the Clean Water Rule,” EPA spokeswoman Melissa Harrison said.
 
“The Clean Water Rule was developed by the agencies to respond to an urgent need to improve and simplify the process for identifying waters that are and are not protected under the Clean Water Act, and is based on the latest science and the law,” she added.

The National Federation of Independent Business, one of the groups that sued to stop the rule, welcomed Friday’s decision.

“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 rule, if implemented, would give the EPA regulatory authority over virtually every square inch of state and private land in the country. It runs roughshod over property rights and represents a massive overreach of federal authority, unprecedented even for this president.

The federal courts usually give the EPA a lot of leeway to regulate our waterways, but this was apparently a bridge too far. The good news is that even if the court decides they have no jurisdiction to rule on the regulation, the injunction is likely to stay in place until the rule is adjudicated.

 

It's a regulation considered the most ambitious expansion of EPA's control over American waterways in history and a federal court has issued an injunction blocking its implementation.

The Hill:

“We conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims,” the judges wrote in their decision, explaining that the Environmental Protection Agency’s (EPA) new guidelines for determining whether water is subject to federal control — based mostly on the water’s distance and connection to larger water bodies — is “at odds” with a key Supreme Court ruling.

The judges said they have yet to decide whether they have jurisdiction to review the regulation, but a stay would make it easier to determine that.

“A stay allows for a more deliberate determination whether this exercise of executive power, enabled by Congress and explicated by the Supreme Court, is proper under the dictates of federal law,” the court said.

“A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing. A stay honors the policy of cooperative federalism that informs the Clean Water Act and must attend the shared responsibility for safeguarding the nation’s waters.”

The decision expands a stay that a North Dakota judge imposed in August, the day before the rule took effect, and that only applied to 13 states.

The EPA said it will respect the court’s decision, but it believes the rule is legal and necessary.
 
“The agencies respect the court’s decision to allow for more deliberate consideration of the issues in the case and we look forward to litigating the merits of the Clean Water Rule,” EPA spokeswoman Melissa Harrison said.
 
“The Clean Water Rule was developed by the agencies to respond to an urgent need to improve and simplify the process for identifying waters that are and are not protected under the Clean Water Act, and is based on the latest science and the law,” she added.

The National Federation of Independent Business, one of the groups that sued to stop the rule, welcomed Friday’s decision.

“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 rule, if implemented, would give the EPA regulatory authority over virtually every square inch of state and private land in the country. It runs roughshod over property rights and represents a massive overreach of federal authority, unprecedented even for this president.

The federal courts usually give the EPA a lot of leeway to regulate our waterways, but this was apparently a bridge too far. The good news is that even if the court decides they have no jurisdiction to rule on the regulation, the injunction is likely to stay in place until the rule is adjudicated.