The Environmental Protection Agency (“EPA”) has recently fallen on tough criticism from western states. Notably, Colorado after the EPA’s involvement in a recent accidental breached mine dam. Additionally, states like North Dakota are taking a stand in opposition to the EPA’s new water pollution rule. In May of this year, the Obama Administration (“the Administration”) utilized the “Clean Water Rule” to assert its authority over the nation’s streams, wetlands, and smaller waterways under the Clean Water Act (“CWA”). Supporters and enforcers of the new rule viewed this action as a definitive win for the health of citizens and the economy, while opponents interpret this new rules a massive federal overreach that puts the EPA in charge of “puddles” and “ditches” it should not have jurisdiction over.
SO WHAT DOES THE RULE REALLY CHANGE?
The Administration and EPA Administrator, Gina McCarthy, emphasize that the rule is being issued simply as a “clarification” to help businesses determine which waterways are subject to pollution rules under the CWA. McCarthy explained that the new rule will increase the federal government’s jurisdiction by less than five percent and does so “without creating any new permitting requirements and maintaining all previous exemptions and exclusions.” The rationale behind the new rule is science-based water sources are linked together and are not simply “little streams” that begin and end within the boundary of one state— they often connect to larger bodies of water that the CWA regulates to control pollution. Small water bodies like streams and wetlands not regulated by the CWA can carry pollutants to the larger waterways like bays and rivers that supply one in three Americans with drinking water. Before the new rule, these larger water sources were susceptible to foreign pollution the “little streams” carry due to inconsistent regulation between the two different sources.
However, opponents of the “clarification” argue under a state’s rights theory that the new rule is an unlawful expansion of federal power that will irreparably diminish control over their water. States, as well as private parties including the energy industry and agricultural interests and developers, believe this is more than a so-called clarification and are deeming it an infringement upon the state’s ability to control what is within their borders.
HOW AND WHICH STATES ARE TAKING A STAND?
North Dakota, along with twelve other states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, South Dakota, and Wyoming) have filed suit in district court for the District of North Dakota arguing that the new rule significantly changes the amount of control they have over the water within their states. On August 28, 2015, a federal judge issued a preliminary injunction on the new rule, stating that the EPA likely exceeded its authority in the expansion. Furthermore, the judge stated the EPA appeared to have failed to follow certain procedural requirements when promulgating the new rule. While many other states have filed similar injunction suits, courts have been reluctant to hear the cases because of jurisdictional issues. However, on October 9, 2015, the Sixth Circuit Court of Appeals (“The Court”) issued a nationwide stay on the new rule even though it has not yet determined if it has proper jurisdiction over the case. The Court issued the stay based on the fact that the states could prevail on the merits. Following argument, The Court found two flaws in the new rule: (1) it appears to be in conflict with Supreme Court precedent and (2) the agency may have failed to properly follow administrative procedures.
The states involved in the suit have long been opponents of federal regulation, and although the rule expands federal control by only 2.8 to 4.6 percent, any increase in federal control is viewed as an overreach. In contrast, states like Connecticut, Hawaii, Massachusetts, New York, Oregon, Vermont, and Washington favor the EPA’s new rule seeing is as an opportunity to have consistency in regulation where all waterways in the United States receive the same level of protection. These seven states also see this as an opportunity to pass on some of the burden and cost of regulation to the federal government, which would relieve the states of costly enforcement while allowing them to enjoy less polluted water. The seven states supporting the new rule plan to intervene in litigation at the appellate level to encourage courts to recognize the benefit the new rule brings; it hard to say consistent regulation of waterways that feed into drinking water sources being protected from pollution is not a benefit.
As is the case in most “state vs. federal” lawsuits, the litigation is likely to last years and in the meantime legislative priorities may change as a new administration enters the White House in 2016. Few things are certain at this stage aside from the nationwide injunction on the new rule issued by the Sixth Circuit Court of Appeals. The federal court in North Dakota recognized the split in state support when it denied a request from the thirteen states to extend the injunction nationally, likely because there are, at a minimum, a number of states that are indifferent to the rule and some states that outright favor it. However, the Sixth Circuit put that notion aside when it extended the injunction nationwide while it waits for briefs on the issue and decides the jurisdictional question. As citizens become more aware of environmental issues that impact their water and states continue to push back against federal regulation, it is likely the Supreme Court can expect a knock at the door from this issue seeking clarification on who in fact controls the water in the United States.
Jodi Peterson, Big ruckus over little streams, HIGH COUNTRY NEWS, (Sept. 4, 2015), http://www.hcn.org/articles/big-ruckus-over-little-streams.
Timothy Cama, President Obama asserts power over small waterways, THE HILL, (May 27, 2015, 10:05AM), http://thehill.com/policy/energy-environment/243179-obama-asserts-power-over-small-waterways.
Jonathan H. Adler, North Dakota district court blocks controversial ‘Waters of the United States’ rule, THE VOLOKH CONSPIRACY, (Aug. 28, 2015), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/08/28/north-dakota-district-court-blocks-controversial-waters-of-the-united-states-rule/.
David P. Steinberger, Who Controls the Water? The Answer is Now On Hold, THE NATIONAL LAW REVIEW, (October 15, 2015), http://www.natlawreview.com/article/who-controls-water-answer-now-hold.
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