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.
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.
Rep. 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.”
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.”
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.
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