The US Environmental Protection Agency (EPA) has hit back against Texas and other states suing to vacate the agency’s new “Waters of the United States” (WOTUS) rule, saying the states have sued to halt a rule that isn’t much different from the status quo.
“Plaintiffs’ claims of harm are premised on either a complete disregard for the Rule’s similarity to the status quo they seek to maintain,” or overstate the differences between the status quo and the new rule, EPA said in a response filed on March 4, according to Bloomberg Law.
In the case, Texas v. EPA, the state is asking the US District Court for the Southern District of Texas to issue a preliminary injunction against the new WOTUS rule, which is set to take effect on March 20. The state claims it faces too much regulatory uncertainty because of the rule, but EPA in its response said Texas failed to show that it has standing to sue because uncertainty isn’t sufficient to establish standing, Bloomberg Law reported.
Officially announced on Dec. 30 (GM Jan. 6, p. 1) by EPA and the Army Corps of Engineers, the new WOTUS rule claims to restore protections that were in place prior to 2015 under the Clean Water Act (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. Since then, some 26 states (GM Feb. 24, p. 30) and a coalition of 17 agricultural and industry groups (GM Jan. 27, p. 1) have joined at least five lawsuits seeking to vacate the rule, claiming it is overly vague and exceeds EPA’s regulatory authority.
EPA, however, said “the differences between the challenged rule and the status quo regime are slight, and neither Texas nor industry has shown a harm arising out of any of those slight differences.” EPA further argued that if Texas were to succeed in its claims against the new rule, it could “unlock the door only to party-specific relief,” not a nationwide scrapping of the rule.
EPA also argued that the plaintiffs haven’t demonstrated that they will be harmed because of higher compliance costs caused by the new rule, because these compliance costs come from existing regulations already in effect, not the new rule, according to Bloomberg Law.
The lawsuits also argue that the new WOTUS rule is premature because of a pending US Supreme Court ruling in Sackett v. EPA, a pivotal WOTUS test case involving a couple that for 15 years has been prevented from building a home on their 0.63-acre property in Priest Lake, Idaho, because EPA claims part of the property contains wetlands and is therefore subject to regulation under the CWA.
In its response, however, EPA said Sackett has no bearing on Texas’ alleged harms. “The states contend that their injuries (to the extent they exist) are ‘exacerbated’ by the pending Sackett litigation, which will ‘likely significantly impact the Rule’s implementation,’” EPA said. “That is the definition of conjecture. The question here is whether the states have suffered irreparable injury caused by the rule, not how a forthcoming court decision may affect its implementation.”