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A thankful Thanksgiving for WOTUS opponents

Article Courtesy Gary Baise

In a few weeks, the Attorneys General and EPA will submit briefs on whether the Court of Appeals should review EPA’s entire WOTUS rule or should it be reviewed by a U.S. District Court.

There is some disturbing language in the opinion where the Court says, “There is no compelling showing that any of the petitioners [Attorneys General of states] will suffer immediate irreparable harm – in the form of interference with state sovereignty, or in unrecoverable expenditure of resources…” The Court, however, also said “…neither is there any indication that the integrity of the nation’s waters will suffer imminent injury if the new scheme is not immediately implemented and enforced.”

Regarding the first conclusion of the three-judge panel, I would respectfully disagree. States, including North Dakota, submitted affidavits showing immediate impacts on projects and it would appear the Court did not adequately consider those affidavits or did not believe them.

Strangely, the Court goes on to say it is greatly concerned in terms of balancing the harms “…potentially visited nationwide on governmental bodies, state and federal, as well as private parties – and the impact on the public in general, implicated by [WOTUS’] effective redrawing of jurisdictional lines over certain of the nation’s waters.” So the Court seems to understand the enormous impact EPA’s WOTUS rule would have on the entire country.

What the Court has done is to stay the effect of the rule temporarily pending a further order of the Court. While this is sufficient to be thankful for, it certainly does not end the battle, but for Thanksgiving, farmers and ranchers should take this decision as a positive step in the right direction and be thankful that there are still courts who attempt to follow the law.