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Army Corps of Engineers

Appeals Court Is Inundated with Waters Arguments

By | Manufacturers’ Center for Legal Action, Shopfloor Legal | No Comments

Last year, the Manufacturers’ Center for Legal Action filed our lawsuit against the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers over their expansive interpretation of their jurisdiction to require permits for the use of a wide variety of land across the country. More than 150 other business organizations, states and other groups have also challenged the “Waters of the United States” (WOTUS) rule in various courts, and many of these challenges, including ours, have been consolidated in one federal appellate courtthe Sixth Circuit. Some of this background, and the justification for our litigation, is summarized in this post from February.

Two key events have happened recently. First, the National Association of Manufacturers (NAM) asked the Supreme Court in September to review a splintered decision from the Sixth Circuit that allows that court to continue to hear arguments in the case, despite a widely held view among lawyers that the Clean Water Act requires the case to be heard by a trial court, not an appeals court, in the first instance. The administration will be filing its response next Monday. If the court agrees to review this issue, considerable time and effort could be saved in trying to resolve the underlying merits of the challenges to the WOTUS rule.

Second, today, business and municipal groups filed a detailed 93-page brief describing point by point the numerous concerns of all the petitioners about the rule. The brief contains textbook examples of arguments that are all too frequently made about government regulations: the rule was promulgated in violation of basic principles of notice-and-comment rulemaking, the agencies failed to comply with the Regulatory Flexibility Act, the rule is inconsistent with the statutory language of the statute (the Clean Water Act), the rule is unconstitutionally vague, and it violates the Commerce Clause and federalism principles. There are also more unusual arguments arising from EPA’s “covert propaganda” efforts in support of the rule.

Courts give agencies considerable deference when interpreting their statutory authority, but the Supreme Court has weighed in several times to try to provide some constitutional limits on the EPA’s jurisdiction, and a significant part of our brief is dedicated to it. The brief argues that the agencies relied too heavily on Justice Kennedy’s concurring opinion in the Rapanos case, which cannot be reconciled with the other justices’ views in the way attempted by the EPA. The EPA’s approach brings into its jurisdiction countless features that lack the volume of flow and proximity needed to ensure that effects on navigable waters are more than insubstantial or speculative.

The scope of the agencies’ jurisdiction is one of the most fundamental issues affecting the regulation of land use in the United States. Today’s brief brings us one step closer to resolving the allocation of regulatory power among federal, state and local governments.

In Either Language, Water ‘Framework’ Is More EPA Overeach

By | Regulations | No Comments

Writing in English, Juliet Eilperin of The Washington Post reports “EPA proposes stricter controls on water pollution“:

The Obama administration announced Wednesday that it will impose stricter pollution controls on millions of acres of wetlands and tens of thousands of miles of streams.

The new guidelines from the Environmental Protection Agency, which will be codified in a federal regulation later this year, could prevent the dumping of mining waste and the discharge of industrial pollutants to waters that feed swimming holes and drinking water supplies. The specific restriction will depend on the waterway.

Writing in Washington bureaucratese , the EPA announces, “Obama Administration Affirms Comprehensive Commitment to Clean Water“:

WASHINGTON – Recognizing the importance of clean water and healthy watersheds to our economy, environment and communities, the Obama administration released a national clean water framework today that showcases its comprehensive commitment to protecting the health of America’s waters. The framework emphasizes the importance of partnerships and coordination with states, local communities, stakeholders and the public to protect public health and water quality, and promote the nation’s energy and economic security.

We expect a new pronouncement of economy-sapping regulation almost every day from the EPA, but does it have to be so soul-sapping, too?

The National Association of Manufacturing’s Mahta Mahdavi explains why the proposal is the latest example of bad regulation to come from the Imperial EPA in the Shopfloor post below, “The EPA Muddies the Water With Its Clean Water Act Guidance.”

The EPA Muddies the Water With Its Clean Water Act Guidance

By | General, Regulations | No Comments

Today, the White House along with a number of agencies that included the Environmental Protection Agency (EPA), the Army Corps of Engineers (Corps) and the Department of Interior held several press briefings and industry calls on clean water policy.  In addition to these briefings and calls, the White House, along with the EPA and the Corps released two documents. 

The White released its comprehensive framework on clean water that highlights a vast number of initiatives that the Administration has either undertaken or will undertake.  The EPA and the Corps also released their joint guidance on the Clean Water Act.  This guidance would replace an earlier guidance released in 2008 by the previous administration that defined the scope of the Clean Water Act more narrowly.   The guidance expands the definition of the “waters of the United States,” and by extension the EPA’s and the Corps’ jurisdiction over these bodies of water.  Ultimately, this guidance serves as nothing but the continuation of the Administration’s burdensome environmental agenda that has been overwhelming manufacturers as they try to recover from one the hardest recessions.

Manchin: Bring Fair Play, Common Sense to EPA Action

By | Energy, Regulations | No Comments

Sen. Joe Manchin (D-WV) made his maiden speech on the floor of the Senate on Thursday, extolling the virtues of common sense and, as a logical corollary, laying into the Environmental Protection Agency. He said:

I believe it is fundamentally wrong for any bureaucratic agency, including the EPA, to regulate what has not been legislated, to have absolute power to change the rules at the end of the game and to revoke a permit, as the EPA did in southern West Virginia’s Spruce Mine, after it was lawfully granted and employees were hired. Giving any agency such absolute power will have a chilling effect on investment and job creation far beyond West Virginia.

Manchin announce introduction of the EPA Fair Play Act, intended “to check EPA’s power, protect jobs and investments in West Virginia and beyond” by preventing the agency from revoking permits that had been legally granted.

The permit for the Spruce Mine was approved after an exhaustive, approximately 10-year regulatory process that included extensive review by the EPA. The U.S. Army Corps of Engineers awarded the Section 404(c) permit, which is a requirement for constructing clean valley fills, a process used in surface coal mining. The EPA has authority under the Clean Water Act to veto Section 404(c) permits before they are awarded by the U.S. Army Corps. However, the EPA has never before attempted to veto a previously awarded and active permit.

Arch Coal was poised to invest $250 million dollars in the Spruce Mine project, which was already employing West Virginians and would have created approximately 200 good-paying jobs with benefits. The EPA’s decision to retroactively veto the permit casts serious doubt on the future of this project and others throughout the country.

Sen. Manchin’s legislation has bipartisan support from other energy-state Senators, although the principle embraced by the bill is larger than coal or mining. It goes to the fundamental rule of law in the country: Can the government arbitrarily take away what was already achieved through a legal process for political or arbitrary reasons?

UPDATE (8:20 a.m.): The bill is S. 272, A bill to amend the Federal Water Pollution Control Act to clarify and confirm the authority of the Environmental Protection Agency to deny or restrict the use of defined areas as disposal sites for the discharge of dredged or fill material. Original osponsors are: Read More