Forget The Injunctions, Courts Seem To Be Buying States' Case Against Waters Of The US Rule

A few weeks ago the federal district court here in North Dakota issued an injunction blocking the Obama administration’s controversial Waters of the U.S. rule. But the Obama administration decided to interpret the ruling as applying only to the 13 states, including North Dakota, which are challenging the law in court.

So they pushed ahead with implementation in the remaining states, until today the Sixth Circuit appeals court issued an injunction blocking the regulation nation wide.

But while the injunctions are nice victories against the federal government’s effort to regulate every mud puddle in America, what’s really interesting about them is what the judges issuing them have to say about the legality of the regulations.

The courts seem to be siding with the states, so far.

These are temporary injunctions, of course, and the findings therein have not been subjected to the full process. These are not final rulings on the merits of the cases. Still, the states suing the feds (of which North Dakota is the lead) have to be happy that the judges are so far finding it likely that they’ll be able to make their case based on the facts.

First, this is from District Court Judge Ralph Erickson’s ruling from back in August where he writes that the states have a pretty good chance for success in their lawsuit (full document here):

The Rule asserts jurisdiction over waters that are remote and intermittent waters. 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.

The Rule also arbitrarily establishes the distances from a navigable water that are subject to regulation. … Once again, the court has reviewed all of the information available to it and is unable to determine the scientific basis for the 4,000 feet standard. Based on the evidence in the record, the distance from the high water mark bears no connection to the relevant scientific data purported to support this because any water that is 4,001 feet away from the high water mark cannot be considered “similarly situated” for purposes of 33 C.F.R. § 328.3(a)(8). While a “bright line” test is not in itself arbitrary, the Rule must be supported by some evidence why a 4,000 foot standard is scientifically supportable. On the record before the court, it appears that the standard is the right standard because the Agencies say it is.

Now, from the Sixth Circuit ruling today (full document), the majority finds it suspect that the rules created by the feds are “harmonious” with previous court rulings:

Petitioners first claim that the Rule’s treatment of tributaries, “adjacent waters,” and waters having a “significant nexus” to navigable waters is at odds with the Supreme Court’s ruling in Rapanos, where the Court vacated the Sixth Circuit’s upholding of wetlands regulation by the Army Corps of Engineers. Even assuming, for present purposes, as the parties do, that Justice Kennedy’s opinion in Rapanos represents the best instruction on the permissible parameters of “waters of the United States” as used in the Clean Water Act, it is far from clear that the new Rule’s distance limitations are harmonious with the instruction.

The court also described the rule making process behind the rule “suspect.”

Moreover, the rulemaking process by which the distance limitations were adopted is facially suspect. Petitioners contend the proposed rule that was published, on which interested persons were invited to comment, did not include any proposed distance limitations in its use of terms like “adjacent waters” and significant nexus.” Consequently, petitioners contend, the Final Rule cannot be considered a “logical outgrowth” of the rule proposed, as required to satisfy the notice-and-comment requirements of the APA, 5 U.S.C. § 553. See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007). As a further consequence of this defect, petitioners contend, the record compiled by respondents is devoid of specific scientific support for the distance limitations that were included in the Final Rule. They contend the Rule is therefore not the product of reasoned decision-making and is vulnerable to attack as impermissibly “arbitrary or capricious” under the APA, 5 U.S.C. § 706(2).

In short, not only have the states successfully fended off this rule in the short term, they also seem to be making a persuasive case against the rule that the courts are buying so far.

“Today’s decision is another battle won in the long war to repeal the WOTUS Rule,” Rep. Kevin Cramer said in a press release today. The “long war” part being the most pertinent part of that statement.

There’s no guarantee that the states are going to win this fight, but so far they seem to be in a good position to deliver a stinging rebuke to the Obama administration.

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

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