American Elephants


The Court has Declared Obama’s “Waters of the United States Rule” Unlawful by The Elephant's Child

This is very good news indeed. U.S. District Court Judge Lisa Godbey Wood stated that the rule, which was intended to provide better protection of the nation’s water, violated the Clean Water Act and the Administrative Procedure Act, and she remanded it back to the EPA and the Army Corps of Engineers for further work. You may recall that the EPA implementation of that rule led to a Wyoming rancher being fined $37,000 a day for building a stock pond on his own property.

The rule was absurd, and Obama’s EPA waved it around viciously. The idea was that the U.S. had jurisdiction over the navigable waters of America, and by extension over the waters that flowed into said navigable waters, tracing them back to your springs or to the downspouts on your house. A control freaks kind of rule.

I found I have written around 19 posts about this rule. Here’s the one about those Wyoming ranchers. The headline I wrote then explains why: “Private property rights seem unimportant until they’re yours, and they’re gone.” The Johnsons had a small 8 acre ranch, and ran 10 head of cattle and 4 horses. That’s not what you’d call a big spread. They diverted a creek that runs through the property to create a stock pond. The EPA (Gina McCarthy) claimed the discharge from the pond flowed into navigable waters. Johnsons got help from Wyoming senators and the Pacific Legal Foundation. The Clean Water Act specifically excludes stock ponds. By the time Mr. Johnson’s counter lawsuit reached the courts the EPA fines had reached $16 million! Perhaps it’s because I grew up rural, and understand what such an attack means. This was only one of The EPA’s many depredations under this rule. The waters pictured above, Granite Creek, are not all that far from my old home.

This decision may be only one of many cases involving the same EPA ruling. Judge Wood wrote that while the agencies have authority to interpret the phrase “waters of the United States,” that authority isn’t limitless.”



The Out-of-Control EPA Requires Some Adult Supervision. by The Elephant's Child

EPA Administrator Lisa Jackson

— Bad Days at the EPA. First the Supreme Court unanimously slapped down the EPA’s vast overreach in the case of the Sacketts who simply wanted to build their dream home on a normal residential lot in Priest Lake, Idaho when the EPA descended on them with orders and fines — $70 something thousand a day, and denied them any possibility of a hearing in court.  That was last Wednesday, March 21.

— March 23, the U.S.. District Court for the District of Columbia ruled in the case of Mingo Logan Coal v. EPA. The court said the EPA’s interpretation of its authority to enforce the Clean Water Act was erroneous. The EPA tried to withdraw permission to use two streams as discharge sites.  The permission was granted three years earlier by the Army Corps of Engineers. Mingo Logan filed the lawsuit because the company believed the EPA did not have the authority to modify or revoke the permit.  They also thought the revocation was unlawful and the permit was still valid

Judge Amy Berman Jackson, an Obama appointee, wrote that “the EPA exceeded its authority.” She also said the EPA’s action was extraordinary.” This attempt to withdraw the specification of discharge sites after a permit has been issued is unprecedented in the history of the Clean Water Act.” Ouch.

— In Texas, the Fifth Circuit Court of Appeals on March 27, slapped down the Out-of-Control EPA, and not too kindly. There are restrictions on major sources of pollution, according to law. There are “minor sources”  noted in the law as well, fo which there are only minimal standards. This sort of pollution is left up to the states, except that they must comply with the minimal requirements of federal law. The EPA has 18 months to approve or disapprove the states plan. The EPA decided to disapprove a plan Texas submitted four and a half years ago. Then they created their own “regulations” for minor source pollution, deciding that they could pass their own laws, outside the normal Constitutional framework.

The Fifth Circuit did not look kindly upon this double contempt of actual written law. The EPA also created three extra-statutory standards out of whole cloth — in the context of a federalism regime that gives sweeping discretion to the states, and assigns only  to the EPA  the narrow task of ensuring that the state plan meets the minimum requirements of the law. An agency literally has no power to act…unless and until Congress confers power upon it.

— Undeterred,  the EPA proceeds. In the press release announcing their proposed MY 2017-25 fuel economy standards, EPA administrator Lisa Jackson and Transportation Secretary Ray LaHood boast that they are bypassing Congress. “Today’s announcement is the latest in a series of executive actions the Obama administration is taking to strengthen the economy and move the country forward because we can’t wait for congressional Republicans to act.” Claims that the fuel economy standards which will rise to 54.5 mpg in 2015 will produce net benefits ranging from $363 billion to $358 billion suggest that considerable skepticism is in order.

A legislative proposal boosting average fuel economy to 54.5 miles per gallon would not pass in the 112th Congress. They didn’t need to propose standards for MY 2017 until 2014. Obama is big on going around Congress. He doesn’t like disagreement, and is not interested in persuasion. Under Congress’s statutory scheme, one agency, the NHTSA regulates fuel efficiency through one set of standards, according to the Energy Policy Conservation Act. Yet today three agencies — the EPA, NHTSA and the California Ar Resources Board regulate fuel efficiency via three sets of standards, under three different standards. The EPA’s grasp for power contains all sorts of funny business, a protection racket, and Carol Browner’s order “never to put anything in writing.” The EPA really doesn’t have any such authority, but perhaps if the court can continue to slap them down, someone will restrain the power grab.

— Now the EPA has released a new rule to regulate CO2 emissions from power plants, which will effectively ban new coal power plants, as its emissions standards are too low to be met by conventional coal-fired facilities. The rationale is extremely shaky, and claims about endangerment are preposterous.

You may have noticed that President Obama is bragging at every campaign venue about his “all of the above” energy strategy which does not meet the most minimal standards of veracity. Obama said early on that he intended to bankrupt the coal industry. The fact that coal plants produce almost half of our electricity seems to have missed their notice.  He wants us to depend on “clean energy” but the clean-energy industry isn’t producing any significant amount of energy. Obama seems to have forgotten that natural gas is a fossil fuel, so perhaps he expects that to take over.

Our economy depends on cheap, abundant power. High gas prices are increasing inflationary pressure, as everything is transported by plane, train or truck, all powered by gasoline. The increased costs — inflation is running at over 8.3% — are a real burden on an economy that is not noticeably recovering, and where unemployment is sky-high. This is Obama’s effort to go around Congress and establish the cap-and-trade that they would not pass.  But actions have consequences, and closed power plants mean more unemployment, higher prices, and potential brownouts and blackouts.

Congress needs to rein in this out-of-control agency, and with it the President’s attempt to rule without regard for the other two branches of government or the Constitution.




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