September 2, 2015

EPA hypocrisy on display in Clean Water rule litigation

By M. Reed Hopper Senior Attorney

There was a time when agency officials were respected as neutral arbiters of the law.  Actual “public servants,” if you will. Empowered, if not predisposed, to protect the People from arbitrary government.  But somewhere along the line these respected “public servants” morphed into self-serving “public officials” and then into reviled “bureaucrats” whose sole purpose is to protect their institutional power.  For proof of this bureaucratic attitude, one need look no further than the EPA.

When the EPA issued its new rule redefining “waters of the United States,” grossly expanding its own power under the Clean Water Act, agency officials cited high-minded goals to win over thousands of people, businesses, and state and local governments that opposed the rule.  Chief among these goals was the claim that the new rule would provide a more uniform application of the law.  According to the EPA, only the federal government could provide such uniformity because the watersheds that must be protected cross state lines and a quilt work of varying state laws is unworkable.

Uniform application of the law is a worthwhile goal because the GAO found in 2004 that the previous definition of “waters of the United States” was purposely ambiguous and public officials enforcing the Clean Water Act were incapable of consistently applying the law.  So one would think, as a showing of good faith, if not out of a moral or legal obligation to the citizens of this Country, the EPA would make every effort to ensure its new rule would be error free and uniformly applied across the Nation.  But that’s not the case.  EPA now advocates an inconsistent application of its new rule.

As we noted here, last week the first court to consider the new rule held it was likely illegal and should be stayed until the court can take a closer look at the record and additional briefing by the parties.  This makes sense because staying the rule would maintain the status quo and protect states and local citizens from heavy-handed enforcement of an unlawful regulation.  But the EPA promptly issued a press release arrogantly and hypocritically asserting it would continue to apply the new rule in any state that was not a party to the suit challenging the rule.  This means that the people in North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming, and New Mexico would be exempt from the rule while anyone in any other state could be subject to crushing civil and criminal penalties for violating the rule.  So much for uniformity.

The hallmark of an orderly society is uniform law.  At its best, inconsistent application of the law is unfair and undermines trust in government institutions.  At its worst, inconsistent application of the law is tyrannical and should not be tolerated.  Government agencies have a duty to “get the law right” in the first instance and to ensure it is neutrally and consistently applied.  EPA’s hypocritical attempt to circumvent the court’s ruling is a breach of the public trust.

Briefing on the scope of the court’s stay, or preliminary injunction, is complete.  You can read the briefs here, here, and here.  Hopefully, the court will see through the EPA’s self-serving arguments and affirm that its injunction applies nationwide and not just to some states.

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