The reason most
often cited for the success of the nonpolitical candidates is the frustration
with Washington; the sense that the system is broken. Voters feel that we have
no control and that government has gone wild. Even people who don’t watch the
news or closely follow politics are aware of the “overreach.” It seems that,
perhaps, the messages the outsiders have been heralding on the trail has caught
on.
Washington’s
overreach has been rolled back—by courts and commissioners and, even, in
response, the government itself. In little more than 30 days, there have been
five distinct cases that you may have missed—each, a victory for responsible
land use.
WOTUS
First was WOTUS,
or the Waters of the U.S. rule—which was scheduled for full implementation on,
Friday, 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. Late on Thursday, 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 EPA “violated its congressional grant of authority in its promulgation
of the rule.”
Undaunted, the
Environmental Protection Agency (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.
Constitutional and
environmental law professor, Jonathan H. Adler, addressed WOTUS in the Washington
Post, saying: “As a general matter (and as the Supreme Court has
recognized) land-use control is generally beyond the scope of federal power. In
this case, the district court concluded that the states were likely to succeed
on the merits as the EPA had adopted an ‘exceptionally expansive’ view of its
own jurisdiction under the CWA.”
Perhaps, as you’ll
see, if the WOTUS deadline was a month later, the EPA may not have been so bold
in its assertion that it would continue to enforce the rule. But, then again,
this is the Obama EPA.
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.”
Addressing the LPC
decision, The National Law Review, states: the “ruling raises important questions about the
upcoming Service decision whether to list the greater sage-grouse under the
ESA. A sage-grouse decision was due on September 30.
Representative Rob
Bishop (R-UT), Chairman of the House Natural Resources Committee, sees that the
FWS “has been illegally steam rolling states by their own secret rules.” He added: “The Obama administration has been merciless in its
quest to list species—even when the science says otherwise.”
Hydraulic
Fracturing Rule
On September 30,
another federal district court 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. As a result, BloombergBusiness
adds, producers “would have faced higher costs at a time when profits already
are strangled by low crude prices.”
In his 54-page
decision, 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.”
Different from the
EPA’s arrogant decision to move forward with implementing WOTUS, a BLM
spokeswoman, according to the Wall Street Journal, said: “While the matter is being resolved, the BLM will follow
the Court’s order and will continue to process applications for permit to drill
and inspect wells sites under its pre-existing regulations.”
Kathleen Sgamma,
vice president of government and public affairs at Western Energy Alliance, a
party to the lawsuit against the government, is overjoyed to finally be
“getting relief from the courts regarding the regulatory overreach of the Obama
administration.” She added: “We hope the BLM, EPA and other agencies that are
rushing to implement even more regulations on the very businesses that create
jobs will pause and actually follow the law and regulatory procedure.”
“The case will
proceed to a final resolution,” BloombergBusiness reports, “probably early next
year.”
Wolf
Reintroduction
Ranchers in and
around New Mexico’s Gila Forest have been fighting the federal government’s
plan to release “another dozen or so Mexican grey wolves.” Already, in the
region, wolves since their introduction in 1998 have killed livestock, and
children waiting for the school bus often do so in cages for protection. I’ve written on the sad tale several times.
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.”
In June, according
the Santa Fe New Mexican, “New Mexico Game and Fish Department Director
Alexandra Sandoval rejected a federal permit for the Mexican wolf program
because she said the FWS lacked a detailed plan to release up to ten captive
wolves in the Gila National Forest, leaving her without enough information on
what effects the predators would have on deer and elk populations.”
In response to the
decision, Game Commissioner Elizabeth Ryan of Roswell, NM, said she and her colleagues could only overturn the director’s
decision on the wolf permit if they found it “arbitrary and capricious.”
Sage Grouse
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.” “According to state fish and game agencies,” Kent Holsinger, a Colorado
attorney specializing in lands, wildlife and water law, told me: “sage grouse
populations have risen 63 percent over the past two springs.”
An ESA listing
would “significantly limit future development.”
The ESA, Brian
Seasholes, director of the endangered species program at the Reason Foundation,
states:
“has a well-deserved reputation for putting severe restrictions on otherwise normal
and legal forms of land and resource use, such as farming and energy
development.” In an op-ed in The Hill, he adds: “When a species is listed under ESA, landowners can face
steep fines, penalties and land use controls that can devalue their property.”
While environmental
groups see the decision as a victory for “industry and its supporters,” others,
such as Utah Governor Gary Herbert—who estimated Utah would lose more than $40
billion in economic production from oil and gas if the sage grouse were
listed—are still not happy.
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. Herbert sees
that the federal government rejected the successful sage-grouse conservation
plan and says the land use plans that govern use of over 60 million
acres of federal land “constitute the equivalent of a listing decision outside
the normal process.” He calls the plans “a significant overreach by the federal
government.” Bishop agrees: “Do not be fooled. The announcement not to list the
sage-grouse is a cynical ploy… With the stroke of a pen, the Obama
Administration’s oppressive land management plan is the same as a listing.” The
land-use restrictions have been decried as “every bit as rigid as could be
expected under ESA.”
While “the West’s
sage-grouse worries are far from over,” I see that, 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, I view it as a recognition that
big government overreach has reached its limits.
The good news about
having so many reform-minded outsiders running for president is that they are
like a band of crusaders spreading the message of big government overreach far
and wide. That message is, apparently, being heard. Voters are, hopefully,
ready for responsible land use. The tide is being rolled back.
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.
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