August 28, 2015

EPA’S CREDIBILITY IN THE TOILET: Federal judge blocks EPA rule on jurisdiction over waterways. U.S. District judge Ralph Erickson (a George W. Bush appointee) has issued a preliminary injunction against implementation of the EPA’s new Clean Water Act rule that would extend the agency’s jurisdiction to virtually every waterway in the country.

Judge Erickson concluded that that the 13 States challenging the rule had established a “likelihood of success” on the merits of their claim that EPA has exceeded its authority:

The Rule allows EPA regulation of waters that do not bear any effect on the “chemical, physical, and biological integrity” of any navigable-in-fact water. While the Technical SupportDocument states that pollutants dumped into a tributary will flow downstream to a navigable water,44 the breadth of the definition of a tributary set forth in the Rule allows for regulation of any area that has a trace amount of water so long as “the physical indicators of a bed and banks and an ordinary high water mark” exist. . . While the Agencies assert that the definitions exclusion of drains and ditches remedies the defect, the definition of a tributary here includes vast numbers of waters that are unlikely to have a nexus to navigable waters within any reasonable understanding of the term. . . .

The Rule asserts jurisdiction over waters that are remote and intermittent waters. No evidence actually points to how these intermittent and remote wetlands have any nexus to a navigable-in-fact water. The standard of arbitrary and capricious is met because the Agencies have failed to establish a “rational connection between the facts found” and the Rule as it will be promulgated. . . .

 Itis within the purview ofthe traditional powers ofthe States to maintain their “traditional and primary power over land and water use.” Once the Rule takes effect, the States will lose their sovereignty over intrastate waters that will then be subject to the scope of the Clean Water Act.

Ouch–the EPA has been officially toasted. The Obama Administration is, as usual, playing hardball and taking the position that Judge Erickson’s opinion only blocks implementation of the waterways rule in the 13 States that were joined as parties to the litigation. Technically this is true, but normally an Administration won’t bother implementing a rule in some states while it is enjoined in others due to broad concerns regarding the rule’s legality. States that didn’t join the North Dakota lawsuit will now have to seek an injunction of their own, and may draw judges who are Obama Administration appointees less inclined to restrain federal executive authority.

So the buck certaily won’t stop with Judge Erickson, and the latest Obama Administration executive power grab looks headed to the Supreme Court.

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