WASHINGTON, July 1, 2015 – The lawsuits against the Obama administration’s Clean Water Act rule are rolling in and look for more to come. Three groups of states filed lawsuits on Monday, the day the rule was published in the Federal Register. On Tuesday, nine more states filed their challenge in the Southern District of Georgia: Georgia, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah and Wisconsin.
The American Farm Bureau Federation, National Cattlemen’s Beef Association (NCBA), American Petroleum Institute and other members of the Water Advocacy Coalition, including mining and homebuilding interests, are filing a challenge to the rule this week in the 5th U.S. Circuit Court of Appeals, said NCBA spokesman Chase Adams.
Several more cases are likely to be filed over the next couple of months. Challenges are likely from additional states as well as business interests, and even environmental groups.
The lawsuits filed by states allege that the EPA and Army Corps of Engineers exceeded their authority in deciding what ditches, wetlands and other features can be regulated as “waters of the United States” (WOTUS). Environmental groups will probably argue that the agencies didn’t go far enough, since they didn’t draw the lines of jurisdiction as broadly as a scientific “connectivity” report had suggested.
Still to be determined is what court is likely to consider these challenges. A lawsuit filed by Texas, Louisiana and Mississippi that calls the WOTUS rule “an unconstitutional and impermissible expansion of federal power over the states and their citizens and property owners” was filed in the Southern District of Texas, the same jurisdiction where the Obama administration’s deferred-action immigration policy is now held up.
The states of Ohio and Michigan filed suit in the Southern District of Ohio. Twelve other states, plus two state agencies from a thirteenth, New Mexico, filed suit in North Dakota federal court.
The National Wildlife Federation is among the environmental groups that could file suit to counter the state and industry claims. The environmentalists would argue that the rule “excludes certain wetlands and tributaries that the science and the scientists … say do have a significant cumulative influence on downstream, physical and biological integrity and should not be excluded” from the WOTUS definition, says Jan Goldman-Carter, wetlands and water resources counsel for the group.
In a thinly veiled warning to farm groups, Goldman-Carter says in an email that “industry challengers should recognize that they risk losing certain exemptions they have secured through the rulemaking process.”
The lawsuits won’t be easy for either side to win. Judges generally give great deference to agencies in their interpretation of laws, says Lowell Rothschild, an environmental law specialist with Bracewell and Giuliani. And in this case, the administration was issuing the rule in response to a pair of Supreme Court rulings as well as requests by outside groups.
“Whether that means the courts will agree with the rulemaking is another question,” says Rothschild. “I do think the rule really pushes the boundaries of not just a reasonable interpretation under the statute but also what the Supreme Court has in the past set as parameters for interpreting the act.”
He said he expected the lawsuits to be eventually consolidated in one court, although cases are being filed in what are considered friendly venues. Environmentalists, for example, are likely to file their case in the jurisdiction of the liberal 9th U.S. Circuit Court of Appeals, based in San Francisco, Rothschild says. Business groups would likely file cases in the District of Columbia.
Opponents of the rule, meanwhile, will be looking to Capitol Hill to at least delay its implementation, which will take effect Aug. 28. Republicans have been moving bills that would kill the rule outright, but they have no chance of becoming law. The House passed a bill (HR 1732) in May to kill the rule and to restrict how the administration could write a replacement, and similar legislation is moving to the floor in the Senate. But the House bill didn’t get a veto-proof majority and it’s not clear the Senate bill could get the 60 votes necessary to end a Democratic filibuster.
Provisions in a pending appropriations bill to block the administration from enforcing the rule in fiscal 2016, which starts Oct. 1, have a better chance of becoming law, but even those will be difficult to enact.
President Obama is threatening to veto the bills and he’s headed to a showdown this fall with Republicans over the spending levels. Unless Obama backs down, Republicans are likely to have to agree to increase spending if they want a chance at enacting the WOTUS measure and other policy riders.
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