Monday, October 12, 2015

Two of three appeals court judges question how waters of the United States rules were adopted

When a federal appeals court on Friday blocked the Environmental Protection Agency from enforcing its new definition of waters of the United States, two of the three judges "raised questions about the scientific justification for how key parts of the rule were created," Todd Neeley reports for DTN The Progressive Farmer. The court said "it must first resolve pending legal questions, including whether the court has jurisdiction to hear multiple lawsuits against the federal government on the rule."

About 30 states have sued EPA and the U.S. Army Corps of Engineers to stop the rule's enforcement, and "a federal court in North Dakota recently issued an injunction preventing the rule's implementation in 13 states," Neeley writes. "In the majority opinion, the Sixth Circuit Court said it believes the plaintiffs have demonstrated their legal claims could be successful."

"The states and other plaintiffs have argued the federal government arbitrarily set distance limitations when determining adjacent waters, tributaries and 'significant nexus' in the final rule, providing no basis in science," Neeley writes. "Internal memos from the Army Corps of Engineers shows Corps personnel raised concerns about those distances being legally defensible in the weeks before the final rule was issued in August."

The court wrote, "We conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims . . . 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 (Administrative Procedures Act)."

EPA and the Corps of Engineers failed to identify "specific scientific support substantiating the reasonableness of the bright-line standards they ultimately chose," states the court. "Considering the pervasive nationwide impact of the new rule on state and federal regulation of the nation's waters, and the still open question whether, under the Clean Water Act, this litigation is properly pursued in this court or in the district courts, we conclude that petitioners have acted without undue delay and that the status quo at issue is the pre-rule regime of federal-state collaboration that has been in place for several years." (Read more)

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