Judge: Injunction against water rule limited to 13 states

[Judi Lynn]

Source: Associated Press

Judge: Injunction against water rule limited to 13 states
James Macpherson, Associated Press
Published 3:40 pm, Friday, September 4, 2015

BISMARCK, N.D. (AP) — A federal judge in North Dakota said Friday that his injunction blocking a new Obama administration rule aimed at regulating some small waterways applies only to the 13 states that sued to block the rule, and not nationwide.

The ruling by U.S. District Judge Ralph Erickson clarified the temporary injunction he issued last week at the request of North Dakota and 12 other states. They sought to stop the U.S. Environmental Protection Agency and the Army Corps of Engineers from regulating some small streams, tributaries and wetlands under the Clean Water Act.

"Because there are competing sovereign interests and competing judicial rulings, the court declines to extend the preliminary injunction at issue beyond the entities actually before it," Erickson wrote.

The EPA maintained after Erickson's initial ruling that the injunction applied in only those 13 states, and said it had begun enforcing it elsewhere. The states had argued that the judge made no geographical limitation in his ruling and it should apply everywhere.


Read more: http://www.chron.com/news/us/article/Judge-Injunction-against-water-rule-limited-to-6485661.php

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[center]

U.S. District Judge Ralph Erickson[/center]

Wikipedia:

Ralph Robert Erickson (born 1959) is a United States federal judge.

Born in Thief River Falls, Minnesota, Erickson received a B.A. from Jamestown College in 1980 and a J.D. from the University of North Dakota in 1984. He was in private practice in West Fargo, North Dakota from 1984 to 1994. He was a Magistrate judge for the Cass County Court, North Dakota from 1993 to 1994. He was a county judge for the Traill, Steele, Nelson & Griggs Counties Court, North Dakota in 1994. He was a state district judge for the East Central Judicial District Court, North Dakota from 1995 to 2003.

On January 7, 2003, Erickson was nominated by President George W. Bush to a seat on the United States District Court for the District of North Dakota vacated by Rodney S. Webb. He was confirmed by the United States Senate on March 12, 2003, and received his commission on March 14, 2003. He became chief judge in 2009.

https://en.wikipedia.org/wiki/Ralph_R._Erickson

[villager]

1. The Earth-molesters are gonna hate that!

Good!

[branford]

2. Other states can seek to intervene in the current case

or they can commence separate lawsuits and seek their own injunctive relief based on this precedent.

In any event, this case still needs to be heard by the Circuit Court of Appeals, and is destined for the Supreme Court, who recently has been very circumspect about EPA overreach, including the liberal justices on the Court.

[villager]

3. EPA "overreach" as in "protecting the environment?"

Interesting choice of vocabulary, there. Sorta "reddish," eh?

In any case, I'm glad this means that it won't affect the blue states who aren't rushing to court, with a squandering of taxpayer dollars -- speaking of "overreach," btw -- to try and overturn this.

[branford]

4. "Overreach" means acting without authority, nothing more, nothing less.

I'm not generally in favor of government agencies acting beyond the limits of their designated powers, no matter how purportedly laudable their goals or pure their motivations. If it's permissible under a Democratic president, it could also be done under Republicans, with very unfortunate results.

The EPA has badly lost cases in their attempts to expand their claimed remit under the Clean Water Act, and been criticized by both liberal and conservative jurists, including the liberal wing of the Supreme Court. Although environmental law is not my area of legal expertise, and I've not carefully examined this case or the injunction, it wouldn't surprise me if the EPA lost another CWA case before the Supreme Court with total or near unanimity among the justices.

I would note if other conservative states seek injunctive relief, and the cases proceed to the various relevant Circuit Courts of Appeal, many of these jurisdiction include blue states who would be covered, or the district or appeals courts could explicitly apply any injunction nationally against the agency rather than against individual states.

[villager]

6. Essentially, you don't want no gubmint telling you what you can do with a stream.

That's what you mean by "overreach."

Your flowery, roundabout language doesn't hide the basic impulse behind your politics here.

[branford]

7. I think you need to complain to the Supreme Court about EPA authority, not me.

All the justices, including all the liberals, have not been too impressed recently with EPA power grabs under the CWA.

You appear to want to justify action by a government agency solely because you believe it's "good," even if they don't actually have the authority. That's dangerous, and accusations that I'm some closet conservative are ludicrous. I'm just well aware that the same authority can be used by conservatives and others with whom I disagree when Democrats are not in power.

Apparently unlike you, I'm comfortable being a liberal Democrat, supportive of environmental conservation, yet still ensuring that we are a nation of laws. The ends do not always justify the means.

[villager]

10. And what are these bad "ends" the EPA is after, that have caused liberal ol' you...

...to so enthusiastically side with red states and industry?

[cstanleytech]

8. It sounded more like they explaining why the EPA does not have the legal authority under the law to

enforce this.
If the EPA wants that authority though then they need to get Congress on board to grant them it, until then their powers are limited much like every other government agency has limits on their powers.

[villager]

9. It sounds like they were explaining the ruling only pertains to the states which brought the suit

And not to other states, where the EPA rules in question would still pertain.

[branford]

11. Yes, and I explained in my earlier posts that this limitation may soon end

based on simple legal strategy and civil procedure, regardless of the underlying merits of the EPA position.

Other states can seek to intervene in the current case or they can commence separate lawsuits and seek their own injunctive relief based on this precedent. This case still also needs to be heard by the Circuit Court of Appeals, and is destined for the Supreme Court, who recently has been very circumspect about EPA overreach, particularly with regards to the CWA. These courts could easily fashion lawful orders against the EPA with national applicability.

Additionally note that if other conservative states seek injunctive relief, and the cases proceed to the various relevant Circuit Courts of Appeal, many of these jurisdiction include blue states who would be covered even though they chose not intervene or seek their own relief, or the district or appeals courts again could explicitly apply any injunction nationally against the agency rather than to individual states.

The EPA's position that the injuction is limited will likely soon be challenged, potentially from multiple venues, and it's uncertain whether the position will endure.

[villager]

12. It may, it may not.

Thanks for at least being explicit about it being "Conservative states" seeking the "relief," and at least being clear which side you're on.

[Igel]

13. Sounds like he's on the side of

"rule of law" not "rule of what I think is expedient and what I like today."

Rule of law is a nifty concept. We're drifting away from it, to "rule of what we can bend and twist the wording of the law to tolerate," but it's still better than the alternatives.

[branford]

14. Exactly.

The EPA has often been particularly bad in this regard because they've sometimes taken positions which, if accepted, would effectively prevent any legal challenge to their actions or authority (e.g., small, plaintiffs like individual rural homeowners cannot challenge EPA rulings in court until they've accumulated millions of dollars in fines over years). It's the reason why even the liberals on the Supreme Court have often ruled against the agency.

Additionally, fights over the what exactly is covered by the Clean Water Act are nothing new, and even many progressives are shocked by EPA interpretations of such matters as what constitutes "navigable waters" when they've examined the details of the legal battles and who the EPA is seeking to regulate and punish.

Although I generally support efforts and legislation to protect the environment, I do not subscribe to an ends justify the means approach to environmentalism (or much else), particularly since such precedents are dangerous, particularly when conservatives are in the position to exercise such authority (likely at the expense of the environment and other liberal priorities).

[villager]

15. Sounds like you and your fellow conservatives trump-et "rule of law" when its conservative,

pro-industry, when a court ruling goes your way.

If a ruling goes the other way, when it's used in the service of the environment, not so much.

It's a common line of conservative rhetoric.

[branford]

16. Potential EPA regulatory overreach often targets small landowners and

similarly sympathetic individuals, and portraying any questioning of EPA actions, particularly concerning the Clean Water Act, as examples of "conservative, pro-industry" sentiment is ludicrous, blind, and uniformed, at least unless you consider all four liberal members of the Supreme Court "Trump-like." The EPA is not always right because environmental is a positive goal.

You might be interested the below article that has a good overview of both the EPA's wins and losses, and you should review cases like Sackett v. EPA, 566 U.S. ___ (2012) with unanimous Supreme Court decisions concerning the Clean Water Act.

http://www.eenews.net/stories/1060004942

https://en.wikipedia.org/wiki/Sackett_v._Environmental_Protection_Agency

[villager]

17. I guess the question is -- what do *you* personally have against this aspect of the Clean Water act?

You have tried to couch your argument in vaguely rueful "but what can we do?" article citations about EPA "overreach," but I've noticed you've never once batted an eye at industry or corporate "overreach."

The problem is, as flawed as any government agency can be (and some far more grievously flawed than others), gutting the EPA is one of the core tenets of modern conservatism.

As you well know.

So without linking to someone else, what do you think about the EPA? Specifically?

Which laws or rulings of theirs do you unhesitatingly support?

[branford]

18. Who's gutting the Clean Water Act or the EPA? Not me.

My original post, and the only real point I wanted before this tangent, was the fairly unremarkable note that the EPA's position that the district court injunction cited in the OP is limited to the states in the current lawsuit may ultimately be untenable, soon challenged or circumvented, and this case destined for the Supreme Court. I'm an attorney, and I was commenting on federal civil procedure.

Since this case is likely headed for the Supreme Court, I later noted that the EPA, at best, has achieved mixed success concerning Clean Water Act regulation and enforcement because it has sought to substantially, and very controversially, widen its remit under the statute and tried to make legal challenge of its action all but untenable. The view is common within the legal community, including the liberal justices of the Supreme Court. I provided a article to demonstrate the nature and extent of CWA litigation.

I've indicated that no executive agency has power beyond its legislative authority, EPA or otherwise, and attempts to expand authority or enforcement by placing undue burdens on proper legal challenge is, for lack of a better terms, simply u-American and frightening. It's a slippery slope that could be used as easily by conservatives as by liberals depending on who's in power.

You've strangely taken most of these procedural observations and relatively banal, yet decidedly liberal, positions, and essentially accused me of being some conservative, pro-corporate, anti-environment shill. I'm sorry to disappoint you, but progressives can support the rule of law and still be liberal, support the environment without believing every EPA action or position is justified, believe the government is a force for good yet still sometimes overreach, and basically not adopt a blind ends justify the means approach to the environment or anything else.

Specifically, I believe that the EPA has indeed sometimes engaged in obvious and serious overreach, largely agree with the decisions in the cases cited in the article, and I'm quite comfortable holding the same positions as most legal scholars, both liberal and conservative, including at times a unanimous Supreme Court.

I have not performed extensive legal research on the OP case, but am hardly surprised that the district court issued the injunction based on what I've read about the issues at play, as well as the likelihood of plaintiffs' success (and other injunction factors), particularly given the EPA's history with CWA litigation, an area of jurisprudence that is controversial and still evolving.

If you believe any of the above implies an intent to "gut" the EPA, there's not much I can say to convince you otherwise, and have no intention of engaging in further fruitless discussion. We are both capable of observing what happens with the injunction and watching the case proceed through the courts to resolution.

Other than accusing me of political malfeasance or complaining about the "tenets of modern conservatism," would you care to challenge my assessment of the procedural trajectory of the case, or possibly provide your analysis of the actual merits of the particular litigation or injunction, other than vague defenses of the EPA's inherent virtue or need to protect the environment at all costs, the law be damned.

[villager]

19. The more you obfuscate, the longer your posts get, the more you're running.

*How do you feel about the EPA? You yourself.

*What policies of the EPA do you -- you yourself -- support?

*Do you agree with the EPA's overall mission?


Your answers -- your answers -- to these questions will tell us all we need to know.

[branford]

20. I have no intention of getting into a long and detailed examination

of the history and nature of the EPA and case by case analysis of its recent victories and losses, both because its totally unnecessary to discuss the OP and injuction, and you've already clearly made up your mind about my (and anyone else) who does not subscribe to your precise views about the agency or environmental law and policy.

Maybe you would care to discuss the actual legal merits of the injunction and procedural possibilities, the case itself, both as a matters of law and policy, the likely outcome at the Supreme Court, and its impact on Clean Water Act jurisprudence?

[villager]

21. "I have no intention of revealing my conservative views on environmental regulation"

"...which in fact will then explain my antipathy toward the EPA."

[branford]

23. Ah, that's for confirming that you have absolutely nothing to offfer

concerning the case from the OP, substantively or procedurally, or the actual significant legal issues that have arisen concerning EPA actions over the Clean Water Act, including criticisms from numerous progressive legal academics and jurists such as all the liberal members of the Supreme Court.

If believing that all government agencies are constrained by legislative authority or that the EPA, no matter how laudable its goals, sometimes overreaches, makes me a "conservative" with "antipathy toward the EPA," I'll wear those labels proudly.

You are also free to continue your "ends justifying the means" and "the EPA is always right because ENVIRONMENT!" approach to protecting the environment, and I'll happily continue to want to both protect the environment while actually living in a nation of laws.

If, as it has similarly done before, the Supreme Court rules against the EPA in the OP case, and thereby again casts doubt on and encourages more and more challenges to all EPA actions and authority, or even if the current injunction cited in the OP ultimately expands nationally, don't blame me for a failing legal strategy or diminishing overall support for environmental causes or the EPA among Congress and many Americans across the political spectrum.

You have essentially demanded a "with me or against me" attitude about the environment and the EPA, and we both know about the poor results of such binary political thinking...

[villager]

24. "Ah, that's for confirming that you have absolutely nothing to offfer"

Exactly. You are quite the dissembler.

Lacking the courage to say you just don't believe in what the EPA does.

[ShrimpPoboy]

22. Ignoring the law

because you think you know better is exactly why that clerk in KY is in jail. You're 100% correct in this thread.

If the EPA doesn't gave the legal authority to do what's being complained of, it's up to Congress to give it to them. The EPA, like the clerk of court, are there to execute the law. Not make it.

[Hortensis]

5. I don't know the details here, but we're just beginning the scrabble for diminishing fresh water.

Of course, haves are fighting to keep what power they have over existing water. Not mentioned here, but of course many are also busy planning to take the water of others in future. The Great Lakes are an obvious "back-up" supply for those who have no intention of stopping draining down their aquifers. Pipelines anyone?