For more than two years, the Southeastern Legal Foundation (SLF) has been fighting the Obama EPA’s biggest unconstitutional overreach in U.S. history. This fight will culminate with a case in the U.S. Supreme Court later this month.
In 2015, the Obama EPA expanded the definition of “waters of the United States” to include nearly every single body of water in our country – from bodies of water as large as the Great Lakes to recurring puddles in your front yard. By expanding the definition, the EPA expanded its regulatory reach because under the Clean Water Act, the EPA can exercise jurisdiction the “waters of the United States.”
SLF is no stranger to challenging the EPA. In 2014, they successfully challenged EPA’s similar attempt to “assert newfound authority to regulate millions of small sources” and “rewrite clear statutory terms to suit its own sense of how the statute should operate” in its greenhouse gas rules. Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014). The Supreme Court there concluded it was “not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery” in search of ever-expanding regulatory authority. Because of its parallel overreach, the Obama EPA definition is destined for a comparable fate.
This month, SLF’s challenge heads to the Supreme Court for it to decide what court can hear future challenges to the definition. All other aspects of SLF’s challenge have been stayed because the EPA has since revoked the Obama EPA’s unconstitutional definition and re-codified its immediate predecessor which will serve as a placeholder while the agency goes through the requisite notice and comment procedures.
As discussed in SLF’s public comment, they applaud the EPA and Army Corps of Engineers for rescinding the unconstitutional and illegal definition because several courts have already indicated their intent to vacate all or portions of the Obama EPA definition and continuing to dedicate time and resources toward the defense of an unlawful rule would be a fruitless and inappropriate waste of taxpayer money. The Obama EPA definition violates the Commerce Clause, the Clean Water Act, and Supreme Court precedent. It provides EPA with the authority to assert jurisdiction over nearly every piece of land in the United States. And, if allowed to stand it serves as gateway for other agencies to do the same without fear of challenge. Repealing the egregious power grab was the first step toward ensuring the EPA remains within its constitutional and statutory bounds.
While the Obama EPA’s definition is by far the broadest ever adopted by the agency, nearly every definition has faced legal challenge. That is why SLF disagrees with the EPA’s refusal to hear comments on the recodification of the pre-2015 definition, which was, notably, vacated by the courts.
Instead, SLF suggests that EPA should return to the last lawful definition, which was the original definition in 1973 and 1974. That definition is not perfect and, as SLF will later comment, should not be the ultimate definition adopted by the EPA. However, in the interim, while EPA goes through the procedures required of it in the Administrative Procedure Act, it is the best, and only, constitutional solution.