Court blocks Obama’s water rule nationwide

A victory for business over EPA.

From the Hill

A federal court ruled Friday that President Obama’s regulation to protect small waterways from pollution cannot be enforced nationwide.

In a 2-1 ruling, the Cincinnati-based Court of Appeals for the Sixth Circuit delivered a stinging defeat to Obama’s most ambitious effort to keep streams and wetlands clean, saying it looks likely that the rule, dubbed “waters of the United States,” is illegal.

“We conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims,” the judges wrote in their decision, explaining that the Environmental Protection Agency’s new guidelines for determining whether water is subject to federal control — based mostly on the water’s distance and connection to larger water bodies — is “at odds” with a key Supreme Court ruling.

The judges said they have yet to decide whether they have jurisdiction to review the regulation, but a stay would make it easier to determine that.

“A stay allows for a more deliberate determination whether this exercise of executive power, enabled by Congress and explicated by the Supreme Court, is proper under the dictates of federal law,” the court said.

“A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing. A stay honors the policy of cooperative federalism that informs the Clean Water Act and must attend the shared responsibility for safeguarding the nation’s waters.”

The decision expands a stay that a North Dakota judge imposed in August, the day before the rule took effect, and that only applied to 13 states.

The National Federation of Independent Business, one of the groups that sued to stop the rule, cheered Friday’s decision.

“Small businesses everywhere this morning are breathing a sigh of relief,” Karen Harned, executive director of the group’s legal foundation, said in a statement.

“The court very properly acknowledged that the WOTUS rule has created a ‘whirlwind of confusion’ and that blocking its implementation in every state is the practicable way to resolve the deep legal question of whether it can withstand constitutional muster.”

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