Washington’s overreach has been rolled back by courts and commissioners. In little more than 30 days, there have been five distinct cases that you may have missed—each a victory for responsible land use.
First was WOTUS, or the Waters of the U.S. rule—which was scheduled for full implementation on August 28. WOTUS attempted to greatly expand the federal government’s authority over water and land and could apply to ditches, streams, wetlands and small isolated bodies of water.
On August 27, U.S. District Judge Ralph Erickson issued a temporary injunction sought by North Dakota and 12 other states. In his decision, Erickson wrote: “Once the rule takes effect, the states will lose their sovereignty over interstate waters that will then be subject to the scope of the Clean Water Act.” Calling the rule “arbitrary and capricious,” he declared that the Environmental Protection Agency (EPA) “violated its congressional grant of authority in its promulgation of the rule.”
Undaunted, the EPA pushed back, stating that the rule only applied to the thirteen states that requested the injunction. For the remaining 37 states, the EPA is enforcing the regulation as planned.
At least 10 lawsuits—including 29 states and 14 agricultural and industry organizations—have been filed in federal district court challenging the rule.
Lesser Prairie Chicken
Once again, a federal agency has been acting “arbitrarily and capriciously.” This time, it is the U.S. Fish and Wildlife Service (FWS). On September 2, U.S. District Judge Robert A. Junell overturned the Obama administration’s 2014 listing of the lesser prairie chicken (LPC) as a threatened species, which gave the bird protection under the Endangered Species Act (ESA) and limited land use in five states.
Citing the “more than 180 oil and gas, pipeline, electric transmission and wind energy companies” that had enrolled in voluntary conservation plans, the Permian Basin Petroleum Association challenged the listing as soon as it was finalized.
The FWS is required to consider the conservation plans. The court determined that FWS “did not properly consider active conservation efforts for the bird when listing it.” Junell wrote: “The Court finds FWS did conduct an analysis, however this analysis was neither ‘rigorous’ nor valid as FWS failed to consider important questions and material information necessary to make a proper evaluation.”
Hydraulic Fracturing Rule
On September 30, another federal judge smacked down another federal agency—this time the Interior Department’s Bureau of Land Management (BLM), which, in March, issued federal fracking rules designed to spur states to follow suit (most energy-producing states already regulate fracking).
BloombergBusiness states: “There are more than 100,000 wells on federal land making up 11 percent of the nation’s natural gas production and five percent of its oil.” The rule, if implemented and adopted by states, as hoped for by the administration, would magnify the impact, “potentially slowing development of oil and natural gas resources,” which is likely the goal.
Wyoming’s U.S. District Judge Scott Skavdahl wrote: “Congress has not authorized or delegated the BLM authority to regulate hydraulic fracturing and, under our constitutional structure, it is only through congressional action that the BLM can acquire this authority.” He issued a preliminary injunction barring implementation of the rules, “finding that those suing had a good chance of winning their case and getting a permanent order barring enforcement.”
Ranchers in and around New Mexico’s Gila Forest have been fighting the federal government’s plan to release Mexican grey wolves, which, since their introduction in 1998, have killed livestock. Children waiting for the school bus often do so in cages for protection.
On September 29, in a 7-0 vote, concerned about the impact to ranchers and elk hunters, the New Mexico Game Commission upheld an earlier decision denying the FWS permits to release Mexican wolves into federal land in southwestern New Mexico.
“Federal policy requires FWS to consult state agencies and comply with their permitting processes when releasing endangered animals from captivity,” Science Magazine reports, “even when releases are made on federal land.”
This string of recent decisions may have been noticed by the Obama administration. On September 22, after years of debate, and after the LPC listing was overturned, Department of Interior (DOI) Secretary Sally Jewell announced that the sage grouse would not be listed under ESA. The Washington Post reports that “the chicken-like grouse does not meet the required standard because a collaboration of federal agencies, states, ranchers, industry and environmental groups has already begun to restore areas where it breeds.”
An ESA listing would “significantly limit future development.”
Rather than listing the sage grouse, which would likely be overturned in court, the DOI’s BLM has released a plan to implement more than 90 land-use strategies. Utah Governor Gary Herbert sees that the federal government rejected the successful sage-grouse conservation plan and says the land use plans that pertain to over 60 million acres of federal land “constitute the equivalent of a listing decision outside the normal process.”
When combined with the aforementioned stories, the unwarranted decision is still welcome news. Land-use plans will be easier to revise under a new administration than removing an ESA listing. But, more importantly, this represents a recognition that big-government overreach has reached its limits.
The author of Energy Freedom, Marita Noon serves as the executive director for Energy Makes America Great Inc. and the companion educational organization, the Citizens’ Alliance for Responsible Energy (CARE). She hosts a weekly radio program: America’s Voice for Energy—which expands on the content of her weekly column. Follow her @EnergyRabbit.