The Swamp Stomp

Volume 16, Issue 10

On February 22, the U.S. Circuit Court of Appeals for the Sixth District agreed to hear consolidated arguments against the Waters of the United States rule. This comes after the injunction made by the court last year, that postponed challenges against the rule until various legal issues could be solved.

This development comes after the same district court heard arguments for and against consolidating the various cases against the WOTUS rule on December 8 of last year. Those in favor of implementing the rule argued that consolidating the cases and having the Sixth Circuit review them as one would streamline the process to a final ruling. Those against the rule wanted the individual federal district courts to each review the cases, so that the rule could undergo more scrutiny. This new ruling means that the Sixth Circuit will be the only court making a decision for now.

The National Law Review reported that the court cited its ruling in National Cotton Council v. EPA in its decision to hear the challenges. The ruling of the 2009 case set precedent for the Sixth Circuit reviewing cases on the affecting of granting and denying permits. The court decided that since these new cases will directly impact permitting rules, and therefore it has jurisdiction over the arguments on the WOTUS rule.

Despite disagreeing with the Sixth Circuit’s decision in National Cotton Council v. EPA, Judge Richard Allen Griffin agreed with the court’s decision this time, due to the precedent set by the previous case, reported KTIC Radio.

“I concur in the judgment holding that we possess subject-matter jurisdiction in this case; thus, I join in denying petitioners’ motions to dismiss. However, I do so only because I am required to follow our precedentially-binding decision, National Cotton Council of America v. U.S. E.P.A., 553 F.3d 927 (6th Cir. 2009). Were it not for National Cotton, I would grant the motions to dismiss,” he wrote.

Paul Beard, a California attorney with Alston and Bird’s environment, land use and natural resources practice group, said that the court had reached the wrong decision. He stated that this ruling will bring the challenges to the Supreme Court faster, as well. However, he did not express optimism at his view on how the rule will be decided.

“With Justice Scalia’s untimely passing, the court’s 5-4 balance in favor of robust review of sweeping environmental rules like the WOTUS rule is no more,” Beard said.

The National Law Review also reported that this decision is significant because of recent event in the Eleventh District Court. There, 11 states were attempting to overturn a decision by a Georgia district court that had a concurring opinion with the Sixth Circuit’s decision. The final decision for that had been put on hold until the Sixth Circuit made one.

Sources

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/22/sixth-circuit-claims-jurisdiction-to-hear-merits-of-challenge-to-epa-waters-of-the-united-states-wotus-rule/

http://www.natlawreview.com/article/sixth-circuit-agrees-to-hear-challenge-to-clean-water-act

http://kticradio.com/agricultural/sixth-circuit-court-to-hear-wotus/

The Swamp Stomp

Volume 16, Issue 8

The Supreme Court delivered a severe blow to President Obama’s climate change plans when it blocked new regulations on coal-fired power plants on February 9. According to the New York Times, the decision is the first time the court has ever blocked a regulation before it has been reviewed by a federal appeals court. The fact that they put off the decision means the court probably has some skepticism about the new regulations.

According to Fox News, the new regulations would have required carbon-dioxide emissions at plants to be cut by one third by 2030. Republicans had called the regulations an “unprecedented power grab”, noting that the implementation would have been extremely costly. The plan included closing some power plants and increasing production of wind and solar energy.

“We are thrilled that the Supreme Court realized the rule’s immediate impact and froze its implementation, protecting workers and saving countless dollars as our fight against its legality continues,” Attorney General of West Virginia Patrick Morrisey said.

Supporters of the regulations stressed the importance of combating climate change. Solicitor General Donald B. Verrilli was among them.

“Climate change is the most significant environmental challenge of our day, and it is already affecting national public health, welfare and the environment,”Verrilli wrote to the Supreme Court.

Although the rules would not go into effect until 2022, many states argued they had already diverted resources or spent money in preparation for the regulations. A few companies already blamed the new rules for them declaring bankruptcy. A group of utilities told the New York Times, “Some of the nation’s largest coal companies have declared bankruptcy, due in no small part to the rule.”

Environmentalist groups and solar and wind power companies pointed to other factors as the reason for coal’s recent decline.“These changes include the abundant supply of relatively inexpensive natural gas, the increasing cost-competitiveness of electricity from renewable generation sources such as solar and wind power, the deployment of low-cost energy efficiency and other demand-side measures, and increasing consumer demand for advanced energy,” a coalition wrote.

This decision by the Supreme Court is not the last choice on the case. They will begin to hear arguments on June 2, which is relatively quick compared to previous cases.

Sources:

http://www.foxnews.com/politics/2016/02/09/supreme-court-puts-obamas-power-plant-regs-on-hold.html

The Swamp Stomp

Volume 16, Issue 5

New Mexico announced on January 14 that it intends to sue the EPA over last year’s mine spill that contaminated the Animas and San Juan Rivers, reported the Washington Times.  New Mexico will be the first state to sue the EPA over this event.

In August, an EPA cleanup crew tasked with draining the Gold King Mine in Colorado unleashed millions of gallons of contaminated water into the nearby rivers. The yellow plume of water made its way through rivers in Utah, Colorado and New Mexico, causing many farmers to close their taps and a temporary shutdown of drinking water supply.

New Mexico Environment Department cabinet secretary Ryan Flynn said the state heard about the spill not from the EPA, but from the Southern Ute Tribe. He claimed that the EPA has not cooperated with state and local agencies to manage the fallout from the spill.

“From the very beginning, the EPA failed to hold itself accountable in the same way that it would a private business,” he said.

According to ABC News, the EPA is well aware of New Mexico’s intent to sue. Spokeswoman Christie St. Clair said that the EPA is reviewing the state’s plans to sue.

“EPA is working closely with the states to develop a long-term monitoring plan to evaluate potential environmental impacts from the spill and will be meeting with representatives in early February,” St. Clair said. “EPA is also reimbursing state and local agencies for response-related costs associated with the spill.”

In addition to the EPA, the state also plans to go after Colorado and the owners of the mines involved in the incident, according to ABC News. Flynn said that Colorado was less than cooperative when New Mexico asked for information on the spill’s effects on the Animas River watershed. According to Flynn, Colorado asked for about $20,000 for a public records request in response to New Mexico.

Larry Perino, a reclamation manager for Sunnyside Mine, has stated that its owners will “vigourously” defend themselves from legal action. He said that the mine was not involved in the spill and thus has no responsibility for its effects. However, Colorado-based San Juan Corp., who owns the Gold King Mine, claims the buildup of wastewater in Gold King is a direct result of a 1990s project in Sunnyside Mine, reported ABC News. Canada-based Kinross Corp., who owns Sunnyside, disputes these claims.

The Navajo nation said that it may too sue the EPA, although no formal has been filed, reported ABC News. Many of the nation’s farmers were forced to close their taps to a very important source of fresh water due to the spill, leading to concerns about economic as well as environmental effects.

Sources:

http://abcnews.go.com/Technology/wireStory/apnewsbreak-mexico-sue-epa-mine-spill-36293032

http://www.washingtontimes.com/news/2016/jan/14/new-mexico-sue-epa-over-toxic-gold-king-mine-spill/

The Swamp Stomp

Volume 16, Issue 3

The U.S. House of Representatives voted on January 13 to overturn the Waters of the United States Rule on the Clean Water Act. The resolution of disapproval passed by a vote of 235-166 and is now headed to the President Obama’s desk, reported The Hill.

The resolution, originating from Senator Joni Ernst from Iowa, was already passed in the Senate as of November and needed House approval to go forward. The Congressional Review Act allows for Congress to overturn an agency rule only if both chambers pass a resolution of disapproval such as this one, Bakken.com reported. In addition to overturning the rule, implementation of this resolution would prevent the creation of any rule substantially similar to the Waters of the U.S. Rule in the future.

Supporters of the resolution and opponents of the rule claim that the Waters of the United States Rule gives too broad definitions as to what the federal government can regulate. Many are concerned that the rule will result in farmers having to pay huge fines to access waters on their own properties and that even the smallest ditch will fall under federal regulation.

“The federal government shouldn’t be regulating every drop of water,” said Bill Shuster, a representative from Pennsylvania. “Just about every wet area in the country is open to federal regulation under this rule. The rights of landowners and local governments will be trampled.”

Supporters of the rule are concerned that a repeal of this rule will confuse what waters can and cannot be regulated. They are also concerned that a lack of regulation will lead to a drop in environmental standards when it comes to clean water. The EPA has stated that the rule is necessary to clarify what constitutes a federally regulated waterway and that it is consistent with the rest of the Clean Water Act, reported The Hill.

“The question is what, where and how do we protect the waters of the United States?” said Peter DeFazio, a representative from Oregon.

President Obama has already promised to veto the resolution when it comes to his desk, reported The Hill. When the Senate passed the resolution in November, the White House made a similar statement, threatening to veto it should the House pass the resolution.

Sources:

http://thehill.com/policy/energy-environment/265734-house-votes-to-overturn-obamas-water-rule

bakken.com/news/id/250626/house-passes-waters-of-the-united-states-resolution-of-disapproval/

The Swamp Stomp

Volume 15, Issue 50

On December 8, a federal appeals court judge said the Waters of the U.S. rule will go to the Supreme Court to be challenged eventually, reported KTIC Radio. How long that takes depends on a number of factors.

The U.S. Sixth Circuit Court of Appeals has to decide whether it wants to consolidate the cases so they can move to the Supreme Court directly, or it can give the lead to the individual federal district courts where the cases are playing out. The state attorney generals who initially sued in these cases would prefer the latter option, as it would allow for more scrutiny by multiple judges. The Obama administration was in favor of consolidating the cases, arguing that it would prevent duplicate rulings and save time and money, KTIC Radio reported.

The Sixth Circuit Court heard oral arguments on December 8 about its jurisdiction to rule on the many cases filed against the Waters of the United States Rule. Members of both sides of the argument voiced their concerns and opinions on how to precede with the cases, which also determines how quickly the rule arrives at the Supreme Court.

“We’re not asking the court to read this case any more broadly than we have all of the other cases that have preceded it,” Martha Mann, a U.S. Department of Justice attorney arguing the case for the EPA and the U.S. Army Corps of Engineers, said. “EPA has time and again gone to circuit courts and said you do not have jurisdiction.”

The court asked the suing states if they were looking for multiple definitions of what constitutes “waters of the united States” by asking the rulings to be played out in separate courts. Eric Murphy, state solicitor for the state of Ohio, replied with a firm “No.” Murphy believed the cases should be played out in the district courts and then eventually work their way up to the Supreme Court.

“I dispute the notion that the jurisdiction should be in this court out of concerns about national uniformity,” Murphy said.

The rule, which has led to thirteen states suing the EPA over its conditions, has come under fire recently due to what many perceive as a loose definition of what constitutes “waters of the United States.” Those against the rule argue that the criteria in the rule could give federal jurisdiction over the smallest of waterways and lead to an overstep by the government. However, the EPA has repeatedly stated that the rule is meant to solidify the definition rather than expand it.

The rule will most likely have to go all the way to the Supreme Court for a final verdict on its legality. According to KTIC Radio, the court itself gave no indication as to where it stood during the oral arguments.

Sources:

http://kticradio.com/agricultural/waters-of-the-u-s-rule-may-go-to-supreme-court/