RALEIGH — Agricultural groups and Gov. Pat McCrory were quick to praise a U.S. Court of Appeals ruling Friday that put the Obama administration’s Clean Water Rule on hold while a multi-state challenge makes its way through the federal court system.
“We are pleased the court recognizes that this federal rule would harm North Carolina’s farmers and stifle economic development, and has decided to prevent the federal government from enforcing it until a final ruling is made,” said McCrory (R). “The future of North Carolina’s waters must continue to stay in North Carolina’s hands and not in Washington, D.C.”
The U.S. EPA was less thrilled. An agency spokeswoman said that the EPA and the U.S. Army Corps of Engineers respect the court’s decision but look forward to “litigating the merits” of the rule, which is also known as Waters of the United States, or WOTUS.
McCrory’s chief environmental regulator, Secretary Donald van der Vaart, said the ruling was “about as good as it can get,” noting that not only did the federal appeals court judges rule that the states who have challenged the rule have a decent chance of winning, but also that no harm would befall the environment by putting the rule on hold.
There is no evidence, the court said, that “the integrity of the nation’s waters will suffer imminent injury if the new scheme is not immediately implemented and enforced.” While the ruling affected the cases of just 18 states regarding the rule, 30 states total have challenged it.
When discussing the states’ chances of winning, the Sixth Circuit particularly seized on the fact that when the draft rule was published, the EPA and U.S. Army Corps of Engineers failed to inform the public that it was considering distance-based limits to better define terms in the Clean Water Act such as “adjacent waters” and “significant nexus,” terms that can make a significant difference when used to determine federal jurisdiction.
The judges wrote that the Obama administration’s lawyers “have 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.”
The opinion did have some good things to say about the administration’s attempt to lessen confusion over jurisdictional questions, saying that clarity on what waters can be regulated is “long overdue” and that the agencies have “conscientiously endeavored, within their technical expertise and experience, and based on reliable peer-reviewed science, to promulgate new standards to protect water quality that conform” to previous Supreme Court decisions.
Agricultural groups also lauded the ruling nationwide and in North Carolina. Anne Coan, director of environmental affairs for the N.C. Farm Bureau Federation, was heartened by the court’s action.
“We are pleased that the court has recognized that this rule should not be in force in North Carolina and nationwide. With so many states bringing their concerns to the court, we think the court probably considered that, would have considered that to be very persuasive in terms of granting a stay,” Coan said.
As with previous comments from agricultural and real estate groups, Coan reiterated that the rule created uncertainty, not clarity.
“This stay will allow time for all these legal issues to work their way through the courts rather than having all this uncertainty implemented on the ground and then possibly later reversed,” Coan said.
Opponents of the rule said that the the extent of the rule’s of expansion of federal jurisdiction was intentionally kept hidden for as long as possible because of the backlash it would cause. Van der Vaart said that while he cannot guess the EPA’s motives, there was a clear pattern as the rule was unveiled.
“The EPA originally came out and said this rule was going to essentially codify the status quo,” van der Vaart said. “And then they came out and said it’s only going to be a 3 percent difference. When the maps were finally revealed, it was clear that it was a massive increase in jurisdictional waters. They were clearly not comfortable sharing that until Congress essentially made them.”
The North Carolina Republican Party used the stay as another opportunity to say that N.C. Attorney General Roy Cooper (D) is falling down on the job. Cooper is the presumptive Democratic nominee to run against McCrory for governor in 2016.
“This ruling is only the latest example of how Roy Cooper isn’t doing his job as attorney general and isn’t looking out for the best interests of North Carolinians,” said N.C. GOP Executive Director Dallas Woodhouse.
Woodhouse held a press conference Thursday to press Cooper for a stance on the issue of sanctuary cities following Democratic presidential candidate Hillary Clinton’s plea to McCrory to veto a bill outlawing the refuges for those in the country illegally.