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the past year questioning the WOTUS rule and introduced various bills to have the rule disapproved or require it to be withdrawn and reconsidered.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:
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.