August 28, 2015

Shameless EPA tries to side-step court order blocking enforcement of controversial Clean Water rule

By M. Reed Hopper Senior Attorney

It is hard to imagine a more blatant display of bureaucratic hubris than the EPA’s handling of its highly disputed rule redefining ” waters of the United States.”

The rule was supposed to be a joint effort between the Corps of Engineers and the EPA, who share enforcement responsibility for the Clean Water Act.  But leaked memos show the EPA acted unilaterally in adopting the final rule over the objections of Corps officials and experts who declared the rule scientifically insupportable, “legally vulnerable” and “difficult to implement.”

The rule itself is a blatant power grab that covers almost all waters in the U.S. and much of the land in direct conflict with the Clean Water Act itself, multiple U.S.Supreme Court decisions, and long-held limits on federal constitutional authority.  It was no surprise therefore that the rule was immediately challenged in court, including ten different suits, more than 70 plaintiffs and 30 states.

Yesterday, we noted here, that a federal judge had issued a nationwide injunction blocking the rule from enforcement because the rule is likely inconsistent with PLF’s Rapanos case and the proper standards for rule-making.  But the EPA now arrogantly claims the injunction only applies to the states that brought the injunction and that the EPA was pushing ahead with the rule throughout the rest of the Country.  The states involved in the injunction include North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming, and New Mexico.

Although an injunction is typically limited to the parties involved, the EPA is a party to the injunction and therefore is bound by its terms.  And by its terms the injunction prohibits enforcement of the rule until further notice by the court.  The EPA is being disingenuous when it claims the injunction does not have nationwide applicability.  Challengers to a nationwide regulation are not required to file a suit in every jurisdiction in the Country to get the rule overturned.  EPA should own up to its error and follow the law.

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