August 31, 2015

Should Congress step back and let the courts handle the WOTUS rule?

By Todd F. Gaziano Chief of Legal Policy and Strategic Research, and Director, Center for the Separation of Powers

Liberty Blog readers know that the “Waters of the United States” (WOTUS) rule issued earlier this summer is not only a brazen power grab by the U.S. EPA and Army Corps of Engineers that will create additional costs, risks, and confusion for ordinary property owners, but that it is also blatantly illegal. Last week, as Reed Hopper’s post explained, a federal district court in North Dakota enjoined EPA from enforcing the rule.  The court held that it is likely that the state challengers will prevail in establishing that the “exceptionally expansive” WOTUS rule is illegal, that an injunction is necessary to prevent their irreparable harm, and that the balance of equities is with the states.

That’s good news for our separate lawsuit in another court in the same judicial circuit, as well as for other lawsuits challenged the rule elsewhere in the nation, in part because the reasoning of the judge in North Dakota is persuasive. And if the injunction holds, every landowner across the United States will have reason to celebrate. So should Congress suspend its action on the rule?

Members of Congress conducted several hearings in the past year questioning the WOTUS rule and introduced various bills to have the rule disapproved or require it to be withdrawn and reconsidered. The entire House passed one such bill, and the Senate Environment and Public Works Committee marked-up and reported another out of committee. Anticipating that President Obama might veto such a stand-alone bill, there is also great interest in having the appropriators add a rider to one of the year-end funding bills to block federal funding to enforce the rule.

Re-phrasing my question above: given how many other important matters Congress has to consider, should it now step back and let the courts decide the ultimate fate of the WOTUS rule?  The answer is “He[ck] NO!”  Let’s count the reasons why:

  1. Even in a simple case, preliminary injunctions are an extraordinary remedy subject to challenge on appeal. It takes years to establish the finality of a contested injunction, which can be lifted and potentially re-imposed, increasing the uncertainty of the underlying rule.
  2. The WOTUS litigation is no simple case. For example, the North Dakota court’s jurisdiction to issue the injunction is not entirely clear, in part because some agency actions under the Clean Water Act must be filed in the federal circuit courts of appeal. The district court’s discussion of this issue in its order is convincing, but you can bet the United States will challenge it.
  3. The EPA also argues that even if the North Dakota district court had power to issue the injunction, it would only apply in the states that brought the suit in question, not nationwide. That’s an outrageous argument, as Reed explained in another Liberty Blog post: “Although an injunction is typically limited to the parties involved, the EPA isa party to the injunction and therefore is bound by its terms. *  *  *  Challengers to a nationwide regulation are not required to file a suit in every jurisdiction in the Country to get the rule overturned.” Even so, the district judge has asked for additional briefing on whether he should modify his injunction to cover just the states that filed in his court. Congress can and should act for the nation.
  4. There are motions to consolidate the various WOTUS cases in one court, and if granted, it is unclear which court will be given jurisdiction. The court that hears the consolidated cases could revisit the injunction issue on its own.
  5. And as some of the ObamaCare decisions have shown, even when there is a strong challenge to a statute, some justices strain to give the government the benefit of the doubt. In other words, just because we know what the right legal answer should be, doesn’t mean the appellate courts, including the Supreme Court of the United States (if it eventually agrees to hear the case) will necessarily get it right. We don’t even know for sure what the composition of the Supreme Court will be a few years from now when the losing party in the appeals court seeks its review. In short, it’s foolish to place too much confidence in the courts, especially in any given case.
  6. More importantly, Congress is free to reject the rule regardless of how the courts rule, or for that matter, regardless of what the right legal answer is under the current law. Even assuming EPA and the Corps were right about their authority under the Clean Water Act to vastly expand their jurisdiction (and correspondingly shrink state and private authority), Congress should be flabbergasted at the federal expansion of power under the rule and reform the statute to cut it back.
  7. It would save millions of dollars in litigation costs and countless millions more in productivity losses for Congress to settle the matter soon. PLF is in the business of suing the government, and we are not afraid to appear in the Supreme Court again on this issue to expand our win in Rapanos v. United States (2006). But we litigate to protect individual liberty, not for our own benefit. And besides, there is no shortage of other cases we could bring against the government. The sooner WOTUS rule is disposed of the better.

Instead of giving Congress a pass, the North Dakota court injunction should be treated as additional, persuasive evidence on Capitol Hill that the rule will cause great harm and is at least of questionable legality so that Members can more confidently end the litigation with legislation. Indeed, it would be cowardly and foolish for Members of Congress to let the courts, now heavily stacked with Obama judges, try to settle this matter. In sum, Congress needs to take responsibility for EPA/Corps overreach now and end the uncertainty and productivity damage of the WOTUS rule.

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Waters of the United States

In 2015 PLF challenged the Environmental Protection Agency’s proposed rule to stretch federal control to nearly every pond, ditch, and puddle in the nation as nothing more than an outrageous—and illegal—power grab under cover of the Clean Water Act. And under the Act, people who are harmed by such rules have six years to sue in federal district court. That is, until the EPA rewrote the rule, trying to prevent legal action by giving property owners just 120 days to sue, and then only in federal appellate courts. On January 22, 2018, the U.S. Supreme Court rejected the EPA’s power play and unanimously ruled for PLF and property rights. The High Court agreed with PLF that the EPA cannot shelter its “waters of the United States” rule from judicial review by arbitrarily limiting where victims can sue.

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