Why conservatives applaud judges who blocked federal clean-water rules

An attempt by the Obama administration to regulate drinking water for nearly one out of every three Americans was blocked by a federal court in Cincinnati, Ohio, on Friday.

For conservative critics of President Obama's federal regulations on everything from for-profit colleges to health care and power plants, curbing the reach of the Environmental Protection Agency represents a victory for state and property rights.

“The rule, if implemented, would give the EPA regulatory authority over virtually every square inch of state and private land in the country,” writes Rick Moran at the conservative American Thinker. “It runs roughshod over property rights and represents a massive overreach of federal authority, unprecedented even for this president.”

For many environmentalists, it's seen as undermining efforts to clean up the nation's water supplies. 

“For more than a decade, the courts left thousands of our streams and wetlands in a precarious legal limbo and vulnerable to pollution and development. Now they’ve done it again," John Rumpler, senior attorney for Environment America, said in a statement provided to The Christian Science Monitor. "It’s hard to reconcile this outcome against clean water with either the law or the science.”

The so-called Waters of the United States (WOTUS) rule would expand the EPA’s jurisdiction from navigable waters to adjacent ones such as seasonal streams and ditches, including many that run across farm fields and through private property. Together, those small waterways make up nearly 60 percent of surface water in the US.

The Obama administration said in May that only serious polluters would have anything to lose under the new rules. But celebrations of Friday’s ruling by 31 states that sued the EPA underscores how political the nexus between federal regulations and private property rights has been in the Obama era.

The battle with the EPA has emerged as an emotional symbol of general government overreach. Blowback against the rule “comes amid years of complaints from Republicans about President Barack Obama’s regulatory agenda, which has encompassed everything from power plants and health insurers to Internet providers and for-profit colleges,” Jenny Hopkinson wrote earlier this year on Politico.

The intent of the EPA rule is to reestablish federal jurisdiction over waters with no “significant nexus” to navigable waters, after two Supreme Court rulings threw the EPA’s power into limbo in the 2000s. As such, the rule, supporters say, simply reasserts the EPA’s jurisdiction over waters that it had regulated since passage of the Clean Water Act in 1970. The Clean Water Act was passed after the polluted Cuyahoga River in Ohio caught fire in the late 1960s.

“These small ‘headwaters’ are important habitats for many organisms and also transport nutrients to larger waters. Damage to or pollution of these waters directly affect larger, downstream waters,” Margaret Palmer, director of the National Socio-Environmental Synthesis Center, told the Monitor in May.

But opponents – including 31 state attorneys general and many conservative politicians – persuaded the court that the rule is too onerous on business and ignores clean-water efforts by US states.

“Under the rule, private land owners could pay more than $100,000 in permits for routine maintenance activities in ditches and on-site ponds,” Rep. Glenn Thompson (R) of Penn., said in a statement. “The rule would also trigger additional environmental reviews, which could extend projects for years, adding unnecessary costs for landowners, businesses, and local governments without tangible environmental benefits.”

For its part, the court issued a stay of the WOTUS rule as it determines whether it has jurisdiction in the case. But the three-judge panel gave credence to the plaintiffs’ argument. The new rule creates a “whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing,” the Cincinnati-based US Court of Appeals for the 6^th  Circuit wrote in its 2-1 ruling.

The court also reasserted the concept of cooperative federalism as part of its ruling, suggesting that federal control over US waters should not be unilateral but should be shared with states. And the judicial panel found that staying the rule would not "imminently injure" US water quality.

To be sure, much of the information spread by industry about the new rule isn’t true, environmentalists say. For one, the rule explicitly states that it does not regulate land use. As such, the rule does not prohibit cows from walking across streams, as some critics have claimed. It also does not regulate puddles. Moreover, the rule even exempts some waters it previously regulated under the 1970 Clean Water Act.

Americans generally have more magnanimous view of federal water control over the nation’s headwaters. A May Hart Research Associates poll concluded that 80 percent of Americans, including 68 percent of Republicans, supported expanding the EPA’s jurisdiction to headwater regions.

But as US courts continue to hash out the extent to which Washington can regulate upstream waterways, the politics of clean water may be overshadowed by a paradox: Many upstream US waterways have been getting noticeably more pristine even without EPA oversight in the last decade.

A 2013 EPA report documented lingering pollution problems in many US streams. But it also found that in a span of only five years, the percent of US stream length found to offer a healthy fish habitat rose from 51 percent to 69 percent, while the percent of stream length showing little evidence of human disturbance rose from 23 to 35 percent.

To be sure, conservationists say such gains can easily be lost if illegal polluters aren’t identified and stopped by a vigilant EPA. But the findings also suggest that American citizens, farmers and industries have in many ways internalized the importance of keeping toxins away from even small streambeds.

“There’s a sense of threat [from polluted water], which gets into the field of risk perception,” public opinion researcher Anthony Leiserowitz, director of the Yale Project on Climate Change Communication, in New Haven, Conn., told the Monitor in June. “But there’s also a sense of efficacy [around clean water gains], which basically means that people understand that there are concrete things that they can do as individuals or collectively as groups – whether it’s a neighborhood, a city or a state government – that will make a difference [on water quality]. Without that sense of efficacy, people say, ‘I’m not going to waste my energy on a big problem that I may be scared about, but I can’t do anything about.’”