Ruling that “on the whole, the greater public interest favors issuance of the preliminary injunction,” Federal Judge Ralph R. Erickson of the District of North Dakota has blocked the Obama Administration’s new Clean Water Act. This law would have extended EPA protection to streams and wetlands that ultimately feed lakes, rivers and other major waterways. The logic is simple: protecting water at its source means cleaner, safer water for the general public.
According to an EPA press release issued in June: “The rule ensures that waters protected under the Clean Water Act are more precisely defined and predictably determined, making permitting less costly, easier, and faster for businesses and industry.”
The press release went on to say that the rule is “grounded in law and the latest science, and is shaped by public input,” adding that it “does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions.”
Apparently, this doesn’t matter to officials in 13 states that have sued the EPA and the Army Corps of Engineers to have the law overturned. According to the lawsuit, the EPA has overstepped its bounds, expanding Federal jurisdiction over state water sources. The government argues that the new rule is necessary in order to protect water sources from polluters. The injunction prevents the law from being implemented while the lawsuit proceeds. Federal judges in Georgia and West Virginia declined to grant injunctive relief to the plaintiffs. However, Judge Erickson blocked the rule on August 27th, just a few hours before it was scheduled to go into effect.
Dan Danner, who heads the National Federation for Independent Businesses, applauds Judge Erickson’s ruling. “The agencies ignored the impact of their actions on small business,” he said. A spokesperson for the House Natural Resources Committee (currently chaired by Utah Republican Rob Bishop) added, “The EPA needs to be stopped before it does more harm to our nation’s precious water resources.” Earlier, House Speaker John Boehner called the rule a “tyrannical power grab that will crush jobs.”
The rule would affect a farmer who builds a dam across a stream in order to create a livestock pond, or a developer or property owner who wants to fill in a wetland or lay a gas or oil pipe across a creek. Senior White House adviser Brian Deese points out that “the only people with reason to oppose the rule are polluters who threaten our clean water.”
Madeleine Foote, a legislative representative for the League of Conservation Voters, points out that Judge Erickson’s ruling is “a terrible decision for the 1 in 3 Americans who have already been waiting too long for these vital protections for their drinking water…[and] puts the interests of big polluters over people in need of clean water.”
Judge Erickson’s ruling stands only while the lawsuit makes its way through the courts, and can still be overturned. Erickson, 56, was appointed by George W. Bush and confirmed in 2003. His record on environmental cases appears to be mixed; in 2011, he denied an appeal from a farmer who had been found guilty of illegally draining a wetland and ordered to pay a $10,000 fine. On the other hand, Judge Erickson expressed concern that when the rule goes into effect, “states will lose their sovereignty over intrastate waters that will then be subject to the scope of the Clean Water Act…the rule will irreparably diminish the states’ power over their waters.” He also finds the Administration’s interpretation of the law to be “exceptionally expansive,” and expresses doubts that the law will survive judicial review.
Given the number of corporatist judges currently sitting on the Federal bench, Erickson may be right. In the meantime, the EPA is going ahead with enforcement in all other states on grounds that the court order applies only to those states that are party to the lawsuit.
