Texas-based oilfield observers respond to Waters of the United States
In recent months, reactions to the Environmental Protection Agency’s latest governmental overreach—into the so-called “Waters of the United States”—has sparked strong pushback from Texas’ energy industry and its related regulatory bodies and political ties. We share here some remarks from various sources.
RRC Files Suit Against EPA Overreach
Railroad Commission Chairman David Porter announced that the Railroad Commission of Texas (RRC) has joined a multi-agency, multi-state lawsuit to combat the Environmental Protection Agency’s (EPA) unprecedented rule interpretation of navigable waters to expand its reach into Texas sovereignty.
“The EPA’s attempt to redefine its rule is tantamount to yet another massive federal overreach, and threatens property rights and drowns land owners in bureaucratic red tape on their own land,” said Chairman Porter. “This lawsuit draws a line in the sand that will push back on this outrageous effort by President Obama’s EPA to further his radical war against fossil fuels.”
Commissioner Christi Craddick said, “In spite of our state’s many successes, the EPA continues to challenge states’ regulatory expertise, ultimately limiting private property rights and economic growth. Texans can rest assured that the EPA’s attempt to unlawfully expand its authority of U.S. waters under the Clean Water Act will be met with our challenge of this unfounded, burdensome effort.”
Commissioner Ryan Sitton said, “Just this morning the Supreme Court overturned the EPA’s flawed rulemaking related to the Clean Air Act, and this lawsuit challenges EPA’s outrageous regulatory expansion predicated on the Clean Water Act. When unelected bureaucrats refuse to consider the impacts of additional regulation on land owners, job creators and businesses in states like Texas, we have to remain vigilant and fight back. I appreciate Governor Abbott and General Paxton’s leadership on these issues and stand ready to assist them in continuing to fight unreasonable regulation.”
The rule redefines navigable waters as used in the Clean Water Act (CWA), allowing the EPA and U.S. Army Corps of Engineers to regulate private land anywhere in the United States where water can conceivably flow—even dry creek beds and manmade ditches. The Texas economy is a proud beneficiary of shale drilling, and some of the water used in this process would move under the jurisdiction of the EPA with the implementation of this rule change.
Other plaintiffs in the suit include the Texas Department of Agriculture, Texas Commission on Environmental Quality, Texas Department of Transportation, Texas General Land office, Texas Water Development Board, the State of Louisiana, and the State of Mississippi.
Heartland Institute Reacts
A federal judge issued an injunction against a new water rule issued by the Environmental Protection Agency. 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 are from energy and environment policy experts at The Heartland Institute – a free-market think tank.
“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
“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.”
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.”
Research Fellow, Energy Policy
The Heartland Institute
“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.”
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.”
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.
Texas Attorney General Sounds Off on WOTUS
Texas Attorney General Ken Paxton today addressed the Texas Public Policy Foundation’s (TPPF) Energy and Climate Policy Summit, where he discussed the state’s current lawsuits against the Environmental Protection Agency (EPA) over its overreaching and misguided regulations on emissions and water.
“The fight against EPA is not just about growing the economy, protecting private property, or even saving jobs,” Attorney General Paxton said. “It’s about standing up for the Constitution and the rule of law. It’s about taking power out of the hands of unelected bureaucrats and returning it to the people. It’s going to take us all, working together, to prevent ideologues from gutting the American dream to advance their own misguided agenda.”
“We also have to stand up to Washington in other areas, such as the Bureau of Land Management’s land grab along the Red River. I commend TPPF for being among the first to act in defense of private property rights in this dispute and I’m proud my office has joined that fight to defend the borders of our state,” said Attorney General Paxton.
Attorney General Paxton discussed ongoing energy issues in the State of Texas, including the current challenge to the EPA’s Carbon Rule, which will result in the premature retirement of existing power plants, damage the reliability of our electricity grid and drive up energy costs for businesses and consumers alike. Texas and West Virginia are leading a 24-state coalition that last month filed suit against the EPA over the new rule.
The attorney general also discussed the state’s challenge of the EPA’s new “Waters of the United States” rule (WOTUS), which was halted by a federal court last month. Under the rule, the EPA would redefine any ditch or gully that might hold liquid as the nation’s “navigable waters,” expanding federal jurisdiction over private land and enabling the EPA to exert control over virtually any property that has the potential to get wet and puddle.
Texas has demonstrated that it can clean its air without destroying the energy sector. Even as the state’s economy and population has grown steadily for decades, nitrogen oxide and ozone levels are down over the past 15 years and Texans are breathing cleaner air.