Preliminary Injunction Against EPA Rule Still Leaves Some States Feeling Unprotected
By Julie Murphree, Arizona Farm Bureau Communication Director: Late last night a federal judge in North Dakota issued a preliminary injunction against the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers’ Waters of the U.S. Rule that officially took effect today. The injunction temporarily prevents the rule from taking effect in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.
“We applaud the court’s decision,” said American Farm Bureau President Bob Stallman. “The so-called Clean Water Rule is yet another example of EPA’s reckless and unlawful behavior in the face of science,
Unfortunately, EPA has taken the position that the injunction is only effective in the 13 states that are involved in the North Dakota lawsuit.
“Even in the face of this court order, EPA is reportedly asserting it will enforce the new rule in the 37 states that are not part of the North Dakota lawsuit,” Stallman added. “Thus, for much of the nation, this unlawful rule will continue to create uncertainty and legal risk for commonplace land uses like farming and ranching. It’s clear that now is the time for Congress to act and pass S. 1140 to send EPA back to the drawing board. We won’t stop until this rule is finished.”
American Farm Bureau and others highlight that the better legal argument is that the rule has been stopped nationwide—not only in certain states. The order says as much, and the states that filed suit asked that it would have national protection.
However, because EPA has made clear it regards the injunction as narrower in scope, and because this is a very unusual situation, no one can be certain about the effect of the injunction outside these 13 states. There is also uncertainty about the long-term effect of this injunction even in these 13 states, because EPA will almost certainly immediately appeal the injunction, and two other district courts ruled earlier this week that district courts do not have jurisdiction to consider challenges to the WOTUS rule in the first place. (If an appellate court later finds that the North Dakota court lacked jurisdiction, then its injunction technically will have had no effect.)
Chip Bowling, president of the National Corn Growers Association and a farmer from Newburg, Maryland, said, “We support the judge’s decision in North Dakota, which should give the courts and the public more time to figure out how to proceed with WOTUS. The Army Corps of Engineers has stated this rule is not based on science or law and is unlikely to withstand a legal challenge. When even the federal agencies responsible for this rule can’t agree on its constitutionality, it’s time for EPA to withdraw the rule and start this process over.
“It is EPA’s view that this injunction only applies to the 13 states that filed the request. We believe EPA is incorrect. It certainly wouldn’t be the first time. Whether the injunction applies to 13 states or all 50, the WOTUS rule will have serious consequences for every farmer and rancher in America. It must not be allowed to stand. From the beginning, we have asked for a rule that provides farmers with clarity and certainty about their responsibilities under the Clean Water Act. Instead, what we got was less clarity and less certainty – along with more paperwork, more permits, and more hassle.”
“Because of EPA’s blatant disregard for the intent of the legal challenge, the bottom line is that the WOTUS rule, beginning today, creates increased legal risk and uncertainty for farmers and ranchers nationwide—with somewhat more uncertainty and risk outside these 13 states,” says Arizona Farm Bureau’s First Vice President Stefanie Smallhouse and a rancher in southern Arizona who has been extensively involved in this issue. “Farmers and ranchers who engage in activities today that cause a “discharge” to features covered under the new rule are at some risk that a court could later find that the WOTUS rule was in effect today.”
“In many ways, farmers and ranchers outside of those states that have filed suit should be concerned,” says Arizona Farm Bureau President Kevin Rogers, cotton wheat and alfalfa farmer based in central Arizona. “While Arizona and the other states that have filed suit against the rule may take a bit of a deep breath, I’m concerned for the other states. I applaud the courts ruling. EPA must change its course.”
AFBF is continuing to push for Congress to pass S. 1140, the Federal Water Quality Protection Act. S. 1140 is the best option to protect farmers and ranchers from the impacts of the WOTUS