Oklahoma officials have been among the most aggressive in fighting the Obama administration’s regulatory overreach through legal challenges. Not all those efforts have succeeded, which has led some to question whether the fights are worth the taxpayer cost. But a recent court victory proves the legal arguments against the Obama’s administration’s actions aren’t mere political posturing.
Last week, the Sixth U.S. Circuit Court of Appeals issued a nationwide stay that prevents the Environmental Protection Agency’s proposed Waters of the United States rule from taking effect. Oklahoma is among the states challenging the rule, which has the potential to treat ditches and normally dry land as navigable waters under federal regulation – with severe economic consequences.
The stay from the Cincinnati-based court doesn’t mean this fight is over, but it strongly indicates that appeals court judges believe those challenging the EPA regulations have a strong case. Indeed, in their 2-1 decision, the court majority concluded Oklahoma and other states challenging the EPA rule "have demonstrated a substantial possibility of success on the merits of their claims."
Among other things, the states argue the EPA’s water rule is at odds with U.S. Supreme Court precedent in a case where wetlands regulation was overturned. The appeals majority effectively agreed, saying it "is far from clear that the new Rule’s distance limitations are harmonious" with the Supreme Court’s prior guidance. But that’s not all. The appeals court also found "the rulemaking process by which the distance limitations were adopted is facially suspect."
The states challenging the water rule note that when the proposed rule was published and submitted for public comment, it didn’t include any proposed distance limitations in its use of terms like "adjacent waters" and "significant nexus." This effectively reduced citizens’ ability to provide feedback on those provisions.
Also, those challenging the rule argue that no specific scientific support was given for the rule’s distance limitations, making it "arbitrary or capricious" under federal law.
The Sixth Circuit majority found that the EPA had "not persuasively rebutted" those claims, and "failed to identify anything in the record that would substantiate a finding that the public had reasonably specific notice that the distance-based limitations adopted in the Rule were among the range of alternatives being considered."
