The U.S. Court of Appeals for the 6th Circuit issued a stay of the Environmental Protection Agency’s Clean Water Rule nationwide Friday, stopping the regulation in its tracks for the time being.
A 2-1 decision by the Cincinnati-based court will keep the EPA and the U.S. Army Corps of Engineers from implementing the rule while the court determines if it has jurisdiction to decide if the rule is a legal use of federal power.
The EPA says the rule would protect streams and wetlands that impact water quality and would more precisely define waters protected by the Clean Water Act. But ranchers, farmers and states argue it gives the federal agency unprecedented authority over drainage ditches and nearly anything else that can contain water.
“The sheer breadth of the ripple effects caused by the rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being,” the decision states.
The rule was officially filed on Aug. 28 in the Federal Register, by which time 22 states had already filed a lawsuit to block the rule. A federal district court judge in North Dakota ruled on Aug. 27 that it had the ability to block the rule in 13 states.
The court said the stay would temporarily silence “the whirlwind of confusion that springs from uncertainty about the requirements of the new rule and whether they will survive legal testing.”
The definitions of “navigable waters” and “Waters of the United States” have been made uncertain by a series of U.S. Supreme Court rulings over the years, the court wrote. The rule would seek to make the rules clearer and the judges stated they are in favor of the intent, but need more time to analyze if the decision constitutes federal overreach.
The judges wrote that the nation’s waters will not suffer “imminent injury” if the rule is stayed.
The lawsuit was brought by Ohio, Michigan, Tennessee, Oklahoma, Texas, Louisiana, Mississippi, West Virginia, Florida, Alabama, Indiana, Kansas, Kentucky, South Carolina, Utah and Wisconsin, along with the North Carolina Department of Environment and Natural Resources.
Senior Circuit Judge Damon Keith wrote the dissenting opinion and said he didn’t believe it was right to issue a stay before the court decided if it had jurisdiction on the case.
“One of the issues in this case is whether this court has exclusive jurisdiction to review the rule in the first instance,” Keith wrote. “We can enjoin implementation of the rule if we determine that we have jurisdiction. But until that question is answered, our subject-matter jurisdiction is in doubt, and I do not believe we should stay implementation of the clean water rule.”
