Mitchell: EPA moving forward with Clean Water Plan in states that did not successfully sue

(Thomas Mitchell) – What moxie.

The Environmental Protection Agency on Friday announced that it is implementing its Clean Water Plan even though a federal judge in North Dakota on Thursday enjoined it from doing so. The EPA said it will enforce its new rule in all the states except those 13 that are a party to the suit. Nevada is a party.

U.S. District Court of North Dakota Chief Judge Ralph Erickson ordered a temporary injunction, saying:

In exercising its power to grant a preliminary injunction, the court must balance the harms to the parties to the litigation while “pay[ing] particular regard for the public consequences.” For the court to grant an injunction, the moving party must establish that the entry of the relief would serve public interest.

On balance, the harms favor the States. The risk of irreparable harm to the States is both imminent and likely. More importantly delaying the Rule will cause the Agencies no appreciable harm. Delaying implementation to allow a full and final resolution on the merits is in the best interests of the public.

The court acknowledges that implementation of the Rule will provide a benefit to an important public interest, both in providing some protection to the waters of the United States and because it would provide increased certainty as to what constitutes jurisdictional waters as some people will be categorically removed from the definition of waters of the United States (for example owners of an intermittent wetland 4,001 feet away from an established tributary). The benefit of that increased certainty would extend to a finite and relatively small percentage of the public. A far broader segment of the public would benefit from the preliminary injunction because it would ensure that federal agencies do not extend their power beyond the express delegation from Congress. A balancing of the harms and analysis of the public interest reveals that the risk of harm to the States is great and the burden on the Agencies is slight. On the whole, the greater public interest favors issuance of the preliminary injunction.

The judge did not say his ruling applied only to those state’s that were involved in the case before. He also questioned the scientific validity of the agency’s so-called scientific basis and called it arbitrary.

He complained of being hampered by a lack of full documentation from EPA, but said what records he did have access to revealed “a process that is inexplicable, arbitrary, and devoid of a reasoned process.”

“The Rule asserts jurisdiction over waters that are remote and intermittent waters,” the judge wrote. “No evidence actually points to how these intermittent and remote wetlands have any nexus to a navigable-in-fact water. The standard of arbitrary and capricious is met because the Agencies have failed to establish a ‘rational connection between the facts found’ and the Rule as it will be promulgated.”

In all 30 states have sued to block the rule, also known as the Waters of the U.S., but have lost in other jurisdictions.

“Today’s preliminary injunction, as requested by Nevada and other states, reasserts the principle that the EPA cannot issue lawless mandates,” said Nevada Attorney General Adam Laxalt on Thursday. “This important order, at a minimum, delays implementation of an unwise, unjustifiable and burdensome rule, and protects Nevada’s landowners, farmers and developers from job losses and increased energy prices, until the final rule can be comprehensively fought in court. I will continue to defend our jobs and families from overreach by the federal government.”

In addition to Nevada, the case out of North Dakota included Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, North Dakota, South Dakota and Wyoming,

The House has passed a bill to block the water rule, and a Senate committee has passed a bill that would force the EPA to rewrite it. The president has vowed to veto any such bill.

The Waters of the U.S. Order is available here.

Mr. Mitchell publishes the 4TH ST8 Blog at www.4thst8.wordpress.com.

The column was originally published on Mr. Mitchell’s blog.