North Dakota is leading the way in an effort to keep Obama’s new water pollution rule from taking effect. Along with 12 other states, it has filed a lawsuit to block the rule, which would give the feds jurisdiction over more of the nation’s small waterways under the Clean Water Act.
The legal pushback is hardly surprising. The attempt to better define the scope of federal control over wetlands, streams and ponds has long been controversial – “It’s been litigated all the way to the Supreme Court three times already,” says Holly Doremus, a professor of environmental regulation at UC Berkeley, “and it might well go to the Supreme Court again.”
On August 28, Judge Ralph Erickson of the District Court for the District of North Dakota placed a preliminary injunction on the rule, stating that the Environmental Protection Agency had probably exceeded its authority in expanding the definition of waters subject to the Clean Water Act, and that the agency didn’t appear to have followed certain procedural requirements in promulgating the rule. While several other district courts had considered similar lawsuits, North Dakota was the only one to actually grant an injunction. The state is viewed as a “friendly jurisdiction for opponents of federal regulations, including the oil and gas industry,” says Doremus.
The rule, the 13 states argue, will “irreparably diminish” their control over their waters. But the increase in federal scope isn’t much – the EPA describes the rule as a “clarification” rather than an expansion of which small waterways fall under its jurisdiction. Statistically speaking, according to Judge Erickson, only between 2.8 and 4.6 percent more of the country’s intrastate waters would come under federal control than currently do.
Regardless of the legislative limbo, the EPA and the Army Corps of Engineers plan to forge ahead. The agencies say the “waters of the United States” rule, which has been in the works for years, now applies in every state except the 13 (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, North Dakota, South Dakota, Wyoming and New Mexico).
The North Dakota case is just one of at least 10 lawsuits seeking to block the new rule. Those suits involve parties from 29 states, the energy industry, agricultural interests and developers, and have been filed in various federal district courts and appeals courts. (Another lawsuit, from an environmental group, argues that the rule is too weak.) The EPA is trying to consolidate cases and get them transferred to the district court in Washington, D.C. “They don’t want to have to litigate in multiple forums on the same issues,” Doremus says, and because the D.C. circuit court is more familiar with administrative law issues and the extent of agency authority, it’s more likely to decide in favor of the EPA. On October 1, a judicial panel will consider whether to consolidate the multi-jurisdictional cases at a New York City hearing.
Although the challenges to the Clean Water Act have typically been framed as a “federal control vs. state control” issue, it’s important to note that seven states (Connecticut, Hawaii, Massachusetts, New York, Oregon, Vermont and Washington) plus the District of Columbia, favor the EPA’s new rule. They plan to intervene in support of it in appeals cases. That split in state support was not lost on Judge Erickson, who today denied a request from the 13 litigating states to extend the injunction nationally, citing the fact that other states do support the rule.
The opposing states think it’s contrary to their interests, says Doremus. “They are states who are against broad federal jurisdiction, who’ve long been less friendly to feds,” especially Alaska, which has a lot of wetlands that might be subject to regulation, and “has long been happy to litigate environmental cases against the feds.” The states supporting it, she notes, want consistency in regulation, where all waterways get the same level of protection nationally. And some hope to pass more of the burden – and cost – of that regulation to the federal government.
Resolving all the litigation and legislative efforts will take years, though. Obama’s second term ends next year, and without a re-election fight to worry about, that’s an opportune time to issue major controversial legislation. But a new administration will soon be in place, which may or may not support the efforts of the EPA, and bills are afoot in Congress that would block the implementation of the new rule or restrict it in various ways.
Jodi Peterson is a senior editor at High Country News.