The EPA’s Water Rule Is Plugged A federal court enjoins the agency’s ‘whirlwind of confusion.’
http://www.wsj.com/articles/the-epas-water-rule-is-plugged-1444601505
Chief Justice John Roberts may have salvaged ObamaCare, but lower courts are proving to be more skeptical of executive overreach. On Friday the Sixth Circuit Court of Appeals stopped the Environmental Protection Agency’s new Clean Water Rule on grounds that it probably exceeds the agency’s legal authority.
The EPA rule, issued in May, extends federal jurisdiction over tens of millions of acres of private land that had been regulated by the states. In August a federal judge in North Dakota issued a preliminary injunction in 13 of the 31 states that have sued to block the rule, and the Sixth Circuit has now echoed that legal reasoning by enjoining the rule nationwide.
Ohio, Michigan and 16 other states challenged the rule, and a three-judge panel of the Sixth Circuit ruled two to one that the “petitioners have demonstrated a substantial possibility of success on the merits of their claims” and that a stay is needed to silence “the whirlwind of confusion that springs from the uncertainty” about the rule’s requirements.
The rule empowers the U.S. Army Corps of Engineers and EPA to micromanage any creek, pond or prairie pothole with a “significant nexus” to a “navigable waterway.” While the EPA’s putative objective was to define limitations on federal authority, the rule in effect gives federal agencies unfettered power.
Lo, the EPA has deemed significant any land within a 100-year floodplain and 1,500 feet of the high water mark or, alternatively, within the 100-year floodplain and 4,000 feet of waters within their claimed jurisdiction. Also covered are land features that “in combination” might affect downstream waters.
As the Sixth Circuit explains, “the rulemaking process by which the distance limitations were adopted is facially suspect” and the EPA has not identified “specific scientific support substantiating” their reasonableness. Further, the Administration’s “argument that ‘brightline tests are a fact of regulatory life’ and that they used ‘their technical expertise to promulgate a practical rule’ is undoubtedly true, but not sufficient.”
The court also shot down the Administration’s argument that “the nation’s waters will suffer imminent injury if the new scheme is not immediately implemented and enforced.” As it happens, the single biggest recent injury to U.S. waterways is the EPA’s own Colorado mine disaster that turned the Animas River a toxic orange and flushed toxins into rivers across the Southwest.
The truth is that the water rule like so many Obama Administration diktats offers marginal benefits at a high cost and is intended to subvert state sovereignty and expand federal dominion over private businesses. Thanks to the Sixth Circuit, at least Americans won’t have to suffer under the EPA’s regulatory burden while the case is being heard.
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