A federal court ruled Friday that President Obama's controversial plan to keep even the tiniest streams and wetlands clean -- called Waters of the United States (WOTUS) -- is likely illegal and therefore cannot be enforced nationwide.
In a 2-1 ruling, the Cincinnati-based Court of Appeals for the Sixth Circuit said they are staying the law to "allow for a more deliberate determination whether this exercise of executive power, enabled by Congress and explicated by the Supreme Court, is proper under the dictates of federal law.”
Wrote the judges in their decision, “We conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims.” They were explaining that the Environmental Protection Agency’s (EPA) new guidelines for determining whether water is subject to federal control — based mostly on the water’s distance and connection to larger water bodies — is “at odds” with a key Supreme Court ruling.
The judges said they have yet to decide whether they have jurisdiction to review the regulation, but a stay will make it easier to determine that.
“A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing. A stay honors the policy of cooperative federalism that informs the Clean Water Act and must attend the shared responsibility for safeguarding the nation’s waters,” judges wrote.
The EPA said it will respect the court’s decision, but it believes the rule is legal and necessary.
“The agencies respect the court’s decision ... and we look forward to litigating the merits of the Clean Water Rule,” EPA spokeswoman Melissa Harrison said.
“The Clean Water Rule was developed by the agencies to respond to an urgent need to improve and simplify the process for identifying waters that are and are not protected under the Clean Water Act, and is based on the latest science and the law,” she added.
The National Federation of Independent Business, one of the groups that sued to stop the rule, welcomed Friday’s decision.
“Small businesses everywhere this morning are breathing a sigh of relief,” Karen Harned, executive director of the group’s legal foundation, said in a statement.
“The court very properly acknowledged that the WOTUS rule has created a ‘whirlwind of confusion’ and that blocking its implementation in every state is the practicable way to resolve the deep legal question of whether it can withstand constitutional muster.”
Environmentalists were disappointed with the stay.
“The court’s decision is obviously disappointing,” said Whit Fosburgh, president and CEO of the Theodore Roosevelt Conservation Partnership. “Regardless, today’s ruling is only preliminary, and the court acknowledges the need for a new rule and the rigorous, science-based process the EPA and the Corps has used to write one. Sportsmen and women across the nation remain steadfast in our support of better clean water protections and are confident that, when the dust settles in the courts, the clean water rule will withstand challengers claiming that it protects our water too much.”
It is a stinging defeat for the president.
Waters of the United States has become one of the most controversial environmental regulations under Obama.
Republicans, nearly 30 states including Florida and a wide range of business interests call it is a major overreach of federal power, putting the EPA in charge of nearly every square inch of private and state land.
The Hill, among the first to report on the ruling, clarifies in its story that the stay is not the final word on the regulation. The court still needs to go through the process of making a full ruling on it. After that, it can be appealed up to the Supreme Court.
