The attorneys general from 23 states on Feb. 16 filed a lawsuit against the Biden Administration’s new “Waters of the United States” (WOTUS) rule, charging that it “goes beyond the power Congress delegated in the Clean Water Act (CWA), raises serious constitutional concerns, and runs roughshod over the Administrative Procedure Act.”
Officially announced on Dec. 30 (GM Jan. 6, p. 1), the new WOTUS rule claims to restore protections that were in place prior to 2015 under the CWA but with “updates to reflect existing Supreme Court decisions, the latest science, and the agencies’ technical expertise.” The rule was published in the Federal Register on Jan. 18.
The new lawsuit, filed in the US District Court for the District of North Dakota, Eastern Division, alleges that the Biden rule is “riddled with problems” and attempts to “reinterpret WOTUS in an unlawfully aggressive way.”
The attorneys general claim that the Environmental Protection Agency (EPA) and the US Army Corps of Engineers promulgated the rule “in violation of multiple procedural obligations,” and that it “runs contrary to constitutional right, power, privilege, and immunity” by offending the Commerce Clause, Due Process Clause, and the 10th Amendment of the US Constitution.
“By implementing an overbroad and hopelessly vague scheme, the agencies have toppled the cooperative federalism regime that Congress intended to protect in the CWA. Core state sovereign interests can be subjugated to the desires of two federal administrative agencies, even as to remote, non-navigable, intermittent, ephemeral, and purely intrastate waters,” the lawsuit states.
“If the final rule is left in place, then ranchers, farmers, miners, homebuilders, and other landowners across the country will struggle to undertake even the simplest of activities on their own property without fear of drawing the ire of the federal government.,” the lawsuit continues. “Landowning Americans of all stripes will thus be left with a choice: fight their way through an expensive and lengthy administrative process to obtain complex jurisdictional determinations and permits or face substantial civil and criminal penalties.”
Plaintiffs in the case include the attorneys general of Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, and Wyoming.
“I want to enforce the laws as written, which includes ensuring that the Biden administration can’t enact rules whenever it wants without express congressional authority,” said Missouri Attorney General Andrew Bailey. “Our nation was founded on the idea of the separation of powers, and I will take any legal action necessary to protect the rights of Missouri farmers from being encroached upon by unelected federal bureaucrats who attempt to illegally expand their authority.”
The attorneys general are asking the court for a preliminary injunction to halt the rule before its implementation in March. The lawsuit follows an earlier legal challenge to the rule lodged by a coalition of 17 trade groups on Jan. 18 (GM Jan. 27, p. 1).