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Heartland Institute Experts React to Injunction Against New EPA Water Rule

August 28, 2015

A federal judge issued an injunction late Thursday against a new water rule issued by the Environmental Protection Agency, scheduled to take effect today.


A federal judge issued an injunction late Thursday against a new water rule issued by the Environmental Protection Agency, scheduled to take effect today. The controversial rule, known as Waters of the United States of America or WOTUS, greatly expanded EPA’s jurisdiction, giving it regulatory power over even ditches temporarily filled with water.

Judge Ralph Erickson of the United States District Court of North Dakota wrote in his decision, “It appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule at issue.” He noted the 13 states suing to stop the rule had a “substantial chance” of prevailing at trial. In response, EPA declared it would impose the rule on the 37 states not in the court’s jurisdiction.

The following statements from energy and environment policy experts at The Heartland Institute – a free-market think tank – may be used for attribution. For more comments, refer to the contact information below. To book a Heartland guest on your program, please contact Director of Communications Jim Lakely at and 312/377-4000 or (cell) 312/731-9364.

“The federal court acted wisely and properly imposing an injunction on EPA’s water grab. EPA is well aware that its proposed restrictions will ultimately be struck down by the courts. However, EPA also realizes that absent an upfront injunction on its proposal, individuals and businesses will have to comply with EPA’s illegal water grab while the issue plays out in the courts. By the time a final court decision would be rendered, individuals and businesses would have been forced to comply with the illegal restrictions merely to avoid astronomical daily penalties imposed by EPA.”

James M. Taylor
Vice President, External Relations
Senior Fellow for Environmental Policy
The Heartland Institute

“Judge Erickson’s decision was a good first start, but it’s just a start. There is little doubt the Obama administration’s Waters of the United States Rule is unconstitutional, ignores previous Supreme Court decisions, and is a gross overreach. Obama, as he has on other issues, seems intent on defying the court.

“As he has done on immigration, where the court has told him he may not stop enforcing the law as it is by giving illegal aliens permission to stay outside the bounds of current law; and as he did during the Deepwater Horizon oil spill, when he placed a moratorium on new drilling despite federal courts ruling twice he had no such power; on WOTUS, administration officials have already announced they will enforce the rule on the 37 states not under this particular court’s jurisdiction. Not since Andrew Jackson have we seen a presidential administration so dismissive of the federal courts. Like Jackson, with his forced relocation of Native Americans in defiance of the Supreme Court, Obama seems to be telling the court, ‘Judge Erickson, you have made your ruling, now enforce it.’

“Ten additional suits challenging WOTUS have been filed by other states and entities appealing for stays until the courts have finally determined whether the rule is constitutional and sound as a matter of law. Unfortunately, federal courts in those jurisdictions have not granted stays. All the cases are being consolidated into a single case before the Sixth Circuit Court of Appeals in Cincinnati. One might hope with different rulings on the issue of a stay, the appeals court would fast-track a hearing to determine whether to stay the rule in all jurisdictions, but in the meantime, the federal government’s heavy boot will lie across the necks of most states across the country, controlling most of the land in the U.S. through the back door by its assertion of power over all waters of the U.S.

“While it is likely the Supreme Court will ultimately determine the fate of WOTUS, absent a stay out of Cincinnati most states will suffer harms imposed by what is tantamount to federal zoning under WOTUS. The only question is, how high the cost will be from Obama’s defiant actions before the court finally acts to rein in the president.”

H. Sterling Burnett
Research Fellow, Environment and Energy Policy
The Heartland Institute
Managing Editor, Environment & Climate News

“U.S. District Court Judge Ralph Erickson knows the constitution and his opinion on the EPA’s proposed ‘Waters of the U.S.’ rule is a fresh and clean breath of common sense from ‘fly-over country.’

“Judge Erickson’s ruling is consistent with prior U.S. Supreme Courts cases (2001 and 2006) ruling against the EPA. Importantly, Judge Erickson calls out the EPA on its rule-making process, finding ‘… a review of what has been made available reveals a process that is inexplicable, arbitrary, and devoid of reasoned process.’ In other words, the EPA made this rule out of thin air.

“The EPA’s WOTUS rule is just the latest in a never-ending process of mission creep. The EPA’s actions today are not based on legislative intent or the grant of authority provided by Congress. The agency has taken on a life of its own, bullying states and private industry with an ideological agenda.

“Simply put, the WOTUS rule is not supported by science and does not account for the rights and concerns of our states or the people. Judge Erickson does not agree with the EPA’s ‘because we said so’ argument, writing: ‘On the record before the court, it appears that the standard is the right standard because the Agencies say it is.’

“The courts, rightly, can only do so much under the constitution. But Judge Erickson’s opinion gives us some breathing room as we wait for Congress to regain its constitutional authority. Congress must stop dithering and bloviating and rein in the regulatory agencies. The EPA’s arrogance and agenda are a bad combination for the future of this country.”

  Bette Grande
Research Fellow, Energy Policy
The Heartland Institute

Ms. Grande represented the 41st District in the North Dakota Legislature from 1996 to 2014.

“I am personally thrilled at this outcome as my backyard drains into a nearby creek, which would have meant that my wife would have been required to obtain approval from EPA to plant anything in our yard. The rule is the best example of EPA overreach to date and it is wonderful that the courts recognized the insanity that the entire nation saw from the day EPA floated this effort to control all we do in everyday life.”

Jay Lehr
Science Director
The Heartland Institute

“The courts delivered a devastating blow to the EPA and a historic win for the property rights of American citizens by rejecting the agency’s plan to greatly expand its authority over wetlands, ditches, farm fields, and other natural features under the Waters of the United States (WOTUS).

“Despite the outcry from environmental activists that will assuredly follow this ruling, the environment is also a beneficiary of this ruling. After EPA’s negligence resulted in the agency spilling three millions of gallons of toxic mining waste into the Animas river on August 13, 2015, it’s reasonable to question the agency’s competency in protecting the waters of the United States altogether. EPA could have taken further steps to prevent the blowout but deemed these measures ‘too costly’ and would ‘require more planning’ than handling the situation with the proper precaution.

“Unlike private companies that would be held accountable for their actions through fines and other punishments, EPA has stated the agency will not face punitive action. U.S District Court Judge Ralph Erickson made the correct decision by striking down EPA’s latest power grab, and in doing so benefited American citizens and the environment.”

Isaac Orr
Research Fellow, Energy and Environment Policy
The Heartland Institute

The Heartland Institute is a 31-year-old national nonprofit organization headquartered in Chicago, Illinois. Its mission is to discover, develop, and promote free-market solutions to social and economic problems. For more information, visit our Web site or call 312/377-4000.

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James Taylor is president of The Heartland Institute.
H. Sterling Burnett, Ph.D., is the Director of the Arthur B. Robinson Center on Climate and Environmental Policy and the managing editor of Environment & Climate News.
Bette Grande is a State Government Relations Manager at The Heartland Institute. Prior to coming to Heartland, she served as a North Dakota state representative from 1996–2014, representing the 41st district. @BetteGrande
Jay Lehr is an internationally renowned speaker, scientist, Senior Policy Advisor with the International Climate Science Coalition and Senior Science Analyst at CFACT.
Isaac Orr is a policy fellow at the Center of the American Experiment on mining and energy issues and a policy advisor for The Heartland Institute. @thefrackingguy