Litigation

Last week MDN told you about a George H.W. Bush district court judge in South Carolina who reversed EPA Administrator Scott Pruitt’s order ending the tragedy of Obama’s Waters of the United States (WOTUS) rule (see Fed Judge Revives Obama Waters of US Tragedy in 26 States). WOTUS is important, because when you redefine everything down to a mud puddle (we’re not joking) as a “body of water” under the authority of the Clean Water Act, you effectively put all oil and gas drilling (and agriculture activities) under the thumb of the federal government. We were bummed about the judge’s decision. But we were focusing on the 26 states, including New York, Pennsylvania and Ohio, that are now subject to WOTUS overreach. But what if we look at the glass as half-full instead of half-empty? Somehow, due to the vagaries of law, the other 24 states (or 33 states if you are Barack Obama, who once infamously said there are 57 states), are not under the Obama WOTUS rule. In other words, the glass is half-full–in particular for West Virginia which is not under WOTUS. The legal beagles at the Davis Wright Tremaine law firm flip the news around and look at the glass-half-full aspect of WOTUS…
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Just when you thought we were making progress in reversing some of the cancerous regulations imposed by Lord Obama, up pops a swamp-dwelling judge (appointed by George H.W. Bush, George the 1st) to reinstate the idiotic “Waters of the United States” (WOTUS) regulation in 26 states. In May 2015, Obama’s radical Environmental Protection Agency (EPA) along with the Obama U.S. Army Corps of Engineers (USACE) released a finalized rule clarifying what WOTUS means vis a vis what can be regulated under the federal Clean Water Act (see EPA Power Grab: Redefines Waters of the U.S. to Include Everything). Essentially the rule change redefined everything down to mud puddles (and no, we’re not exaggerating) as being subject to the federal Clean Water Act. It was yet another attempt to bring oil and gas regulation under the purview of the federal government, a violation of the U.S. Constitution. We won’t recount the history of lawsuits and counter lawsuits that ensued. We’ll only tell you that in January the U.S. Supreme Court entered the fray by determining which courts can hear lawsuits regarding WOTUS (see U.S. Supreme Court Changes Jurisdiction for WOTUS Challenges). In February, then-EPA Administrator Scott Pruitt (we’re sorry he’s now gone) suspended the existing WOTUS until two years from now when a new WOTUS will be ready (see EPA Director Scott Pruitt Suspends Obama WOTUS Rule). The swamp-dwelling, Bushie U.S. District Judge David Norton threw that out and reinstated WOTUS. It’s OK for Obama and his droids to take the law into their own hands, but when another administration comes in and wants to wash away the stain of overregulation, that’s not OK. We call that protecting the swamp…
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