In another win for property owners, the Sixth U.S. Circuit Court of Appeals has blocked nationwide implementation of the Environmental Protection Agency (EPA)’s and Army Corps of Engineers’ controversial “waters of the U.S.” (WOTUS) rule until the litigation over the rule’s legality can play out.
Today’s decision expands on a federal court decision in North Dakota that blocked the rule in the 13 states filing suit with that court on August 27—one day before the agencies began implementing the rule in the remaining 37 states.
The WOTUS rule aims to distinguish which waters the federal government can regulate under the Clean Water Act. The problem is that, at best, WOTUS has injected further uncertainty about which waters can be regulated by the federal government. At worst, the rule would allow the EPA and the Army Corps to regulate almost every “water” in the U.S.—from rivers to ditches.
According to the Sixth Circuit Court, staying the rule accomplishes two things.
First, it allows time for the legality of the expansive rule to be adjudicated before farmers, businesses, and states are harmed. The EPA has doggedly defended its position that the rule is clear while discounting and mischaracterizing positions to the contrary. Yet the court determined that blocking the rule will “temporarily silenc[e] the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing.” The judges continued that “the sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo.”
Second, the Sixth Circuit Court determined as a policy matter that blocking the rule “honors the policy of cooperative federalism that informs the Clean Water Act and must attend the shared responsibility for safeguarding the nation’s waters.” If the EPA and Army Corps find today’s decision distasteful, perhaps it could be because the decision is so unlike their WOTUS rule, which tramples the important role that states play in water stewardship, as envisioned by the Clean Water Act.
Congress must now show leadership rather than merely hoping that the courts will defend property rights, the role of states, and good environmental policy.
The court’s decision only temporarily stops implementation of the WOTUS rule until its legality can be determined. The rule, even if it survives legal challenges, should not be permitted to stand. As the federal court in North Dakota noted: “Once the rule takes effect, the states will lose their sovereignty over intrastate waters that will then be subject to the scope of the Clean Water Act[.] … Immediately upon the rule taking effect, the rule will irreparably diminish the states’ power over their waters.”
Concentrating environmental decisions in Washington means that Americans are that much more removed from being involved in the environmental decisions that affect their communities and own backyards. Good environmental policy is site- and situation-specific, something with which Washington bureaucrats are notoriously bad at dealing.
The court’s decision today leaves the EPA and Army Corps to regulate waters as they had before the rule was finalized on August 28. However, the status quo is nothing to be content with. Under this status quo, the EPA has tried to claim water as a “pollutant,” and families like the Sacketts and Johnsons have faced millions of dollars in fines—not for grossly polluting waters with toxic waste, but for attempting to build a home in a housing development and creating a stock pond for farm animals.
Congress should be encouraged to act, taking the recent court cases as impetus to kill the WOTUS rule. The courts have indicated the possibility that the rule is not just confusing, but flatly contrary to the law. But they were also clear in placing responsibility with Congress. As the judges wrote today, the EPA and the Army Corps were “enabled by Congress” to act as they did.
It’s time that Congress takes its legislative role seriously.