NFIB Cheers Temporary Court Victory on WOTUS Rule

Date: October 09, 2015

DC (October 9, 2015)
Karen Harned,
Executive Director of the National Federation of Independent Business (NFIB)
Small Business Legal Foundation
, this morning issued a statement reacting
to the federal 6
th Circuit Court of Appeals’ decision blocking the
controversial Waters of the US rule from taking effect nationally:

“Small businesses everywhere this morning are
breathing a sigh of relief.  The Court
very properly acknowledged that the WOTUS rule has created a ‘whirlwind of
confusion’ and that blocking its implementation in every state is the
practicable way to resolve the deep legal question of whether it can withstand
constitutional muster.”

In a decision rendered this morning, the 6th
Circuit Court concluded:

“A stay
allows for a more deliberate determination whether this exercise of Executive
power, enabled by Congress and explicated by the Supreme Court, is proper under
the dictates of federal law. A stay temporarily silences the whirlwind of
confusion that springs from uncertainty about the requirements of the new Rule
and whether they will survive legal testing. A stay honors the policy of
cooperative federalism that informs the Clean Water Act and must attend the
shared responsibility for safeguarding the nation’s waters. See 33 U.S.C. §
1251(b) (“It is the policy of Congress to recognize, preserve, and protect the
primary responsibilities and rights of the States to prevent, reduce, and
eliminate pollution.”). In light of the disparate rulings on this very question
issued by district courts around the country—enforcement of the Rule having
been preliminarily enjoined in thirteen states4 —a stay will, consistent with
Congress’s stated purpose of establishing a national policy, 33 U.S.C. §
1251(a), restore uniformity of regulation under the familiar, if imperfect,
pre-Rule regime, pending judicial review.”

NFIB is one of several litigants who have
challenged the constitutionality of the sweeping new regulation, which gives
the federal government broad authority to regulate not only major waterways
like rivers, lakes and bays, as the Clean Water Act specifies, but local and
even private bodies of water as well. 
Several weeks ago another federal court representing 13 states issued a
stay, blocking the EPA from enforcing the rule until the legal disputes are
resolved.  The EPA, however, insisted
that the Court’s decision applied to only those states, and that the WOTUS rule
could be enforced everywhere else.  Today’s
decision dams up that plan as well.

“This regulation has the potential to dramatically
alter the economy by placing a massively complicated set of federal rules on
local development,” said Harned.  “Local
businesses in every state are threatened, and the 6
th Circuit Court
was right today in protecting all of them until the Supreme Court can resolve
the matter.”

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