WASHINGTON, Oct. 9, 2015 – Farm groups and agricultural stakeholders are celebrating a federal appeals panel decision to issue a nationwide stay on the Environmental Protection Agency’s Waters of the U.S. (WOTUS) rule, suspending the rule’s implementation in the 37 states that were outside of an earlier ruling.
In the opinion, Judge David McKeague of the U.S. Court of Appeals for the Sixth Circuit, said the plaintiffs, 18 states in this case, “have demonstrated a substantial possibility of success on the merits of their claims” and that a stay will not cause undue harm to either the states or the environment. Judge Richard Griffin joined in McKeague’s opinion, providing the two-to-one majority.
“There is no compelling showing that any of the petitioners will suffer immediate irreparable harm – in the form of interference with state sovereignty, or in unrecoverable expenditure of resources as they endeavor to comply with the new regime – if a stay is not issued pending determination of this court’s jurisdiction,” McKeague wrote. “But neither is there any indication that the integrity of the nation’s waters will suffer imminent injury if the new scheme is not immediately implemented and enforced.”In August, a federal judge issued a preliminary injunction that implementation of WOTUS - also known as the Clean Water Rule – in 13 states one day before its scheduled Aug. 28 implementation date. This ruling is the first nationwide action to stay the rule.
In a statement, EPA said it and the Army Corps of Engineers “respect the court’s decision to allow for more deliberate consideration of the issues in the case and we look forward to litigating the merits of the Clean Water Rule,” which EPA said is “based on the latest science and the law.”
The decision is a victory for many in the agricultural community who were hoping to stop the rule through the legal process after legislative efforts through either a standalone bill or an appropriations rider proved challenging. Philip Ellis, president of the National Cattlemen’s Beef Association (NCBA), said the decision will stop EPA and the Army Corps of Engineers from implementing the “disastrous rule.”
“This is great news for cattlemen and women and all land users who have been at a loss as to how to interpret this rule,” said Ellis. “In granting the stay, the majority of the Court sided with the states that the rule likely fails on both substantive and procedural grounds.”
American Farm Bureau Federation (AFBF) President Bob Stallman said he was pleased that the court recognized the rule’s “serious flaws,” but he is still hopeful for further action to stop the rule completely.
“The judges expressed deep concerns over the basic legality of this rule,” Stallman said in a statement. “We’re not in the least surprised. This is the worst EPA order we have seen since the agency was established more than 40 years ago. The court clearly understood our arguments. We are confident that the courts will strike down this rule.
Bob Stallman, AFBF
“We all want clean water, but this regulation is just a big land grab that promotes growth in the size of government and allows activists to extort and micromanage all kinds of farming and business activities,” Prestage said.
NCGA President Chip Bowling said while WOTUS was meant to clear up EPA jurisdiction, the rule is “anything but clear. We are confident the courts will eventually strike down EPA’s WOTUS rule altogether.”
Many on Capitol Hill were also quick to praise the decision. House Agriculture Committee chair and Texas Republican Mike Conaway called the ruling “a tremendous victory for agriculture” and that he was “encouraged by the court’s decision to stay this rule.” His Senate counterpart, Pat Roberts, R-Kan., said that in light of the “widespread confusion” surrounding WOTUS, “this ruling should send a clear signal to the EPA that the rule should be scrapped altogether.”
Many other legislators with agricultural ties were also happy to see the nationwide stay. Nebraska Republican and Senate Ag Committee member Ben Sasse called the ruling “a victory for common- sense and the rule of law,” adding that the rule “is now on borrowed time.” Sen. Heidi Heitkamp, D-N.D., said the stay was “an important step, but it’s not enough,” calling for legislative action on the rule.
Legislators outside of agricultural jurisdiction also applauded the court’s decision. Senate Environment and Public Works Committee Chairman Jim Inhofe, R-Okla., said the ruling is “a victory for all states, local governments, farmers, ranchers, and landowners,” and that “the court is likely to overturn the rule.” House Oversight and Government Reform Committee chair Jason Chaffetz, R-Utah, said the decision is “welcome news for many Americans” and that “in light of this decision, the EPA should withdraw this rule immediately.”
There are several lawsuits from both states and stakeholder groups against WOTUS currently before courts across the country. In the case involving the stay announced today, the states of Ohio, Michigan, Tennessee, Oklahoma, Mississippi, Georgia, West Virginia, Alabama, Florida, Indiana, Kansas, Kentucky, South Carolina, Utah, Wisconsin, and the North Carolina Department of Environment and Natural Resources were listed as petitioners. In a statement, Oklahoma Attorney General Scott Pruitt noted that two federal courts have determined that WOTUS is likely unlawful, and no court has decided otherwise.
“Until those legal challenges are settled, it’s entirely appropriate that the federal courts block implementation of the WOTUS rule,” Pruitt said. “This is certainly a win for Oklahoma, but the legal fight moves forward as we work diligently to roll back WOTUS.”
Those opposed to the rule contend it greatly expands the authority of the EPA under the Clean Water Act and would have been placed an overly expensive burden both on authorities charged with enforcement and producers found to be in non-compliance. The rule is subject to a number of lawsuits across the country from states and stakeholder groups.
Based in Cincinnati, the Sixth Circuit Court of Appeals has appellate jurisdiction over district courts in Kentucky, Michigan, Ohio and Tennessee.
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