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AAC F A M I L Y & F R I E N D S EPA


to have nothing to do with your day-to-day tasks. Essentially, the Court is sending a clear message to all federal regulatory agencies that, at least when its regulation must meet the threshold of “appro- priate and necessary,” the cost of implementation and compliance with their standards borne by the entities being regulated must be considered before that regulation is permitted. Arkansas Attorney General Leslie Rutledge publicly praised the


U.S. Supreme Court for its ruling: “Today is a victory for Arkansas’s economy and consumers as the Su-


preme Court reined in the EPA. We all want to protect the environment to make sure that we pass along clean air and clean water to future genera- tions. I’m pleased the Supreme Court has ruled that the EPA cannot ignore the costs of those regulations it seeks to impose. As Justice Antonin Scalia indicated in his majority opinion, the Clean Air Act makes several men- tions of costs, which should be one of the many factors the agency considers as it proposes new rules. Te EPA’s own estimate of the cost of compliance with the challenged regulation was $9.6 billion per year, with only $4 to $6 million per year in benefits. Tis ruling should serve as a reminder to the EPA that it is not above


the law. Last month, the EPA put forward its unprecedented rule to expand its authority over numerous isolated bodies of water, a clear vio- lation of the Clean Water Act. In addition, later this summer, the EPA is expected to finalize its Clean Power Plan, which will seek to impose illegal requirements on States and power plants. Both rules exceed the in- tent provided by Congress and will have devastating effects on Arkansas. In light of today’s ruling, I encourage the EPA to withdraw its WOTUS rule and carefully consider the legality of the Clean Power Plan.”


Standing up to federal overreach has been one of Rutledge’s most


prominent platforms since she first declared her candidacy for the 2014 Arkansas Attorney General race, and she certainly has not backed down from it. Rutledge testified before the federal Senate Agriculture Com- mittee in March in opposition of the EPA’s proposed “Waters of the United States” rule under the Clean Water Act. She testified that the proposed rule could cripple Arkansas’ agriculture industry; that it fur- ther convoluted what the federal government can regulate; would serve to confuse Arkansas farmers; and force them to seek legal assistance in order to comply with the proposed rule. She explained in her testimony that potential fines for farmers not in compliance could reach $37,500 per violation per day. Rutledge does not stand alone; more than 1 million comments, largely by farmers and ranchers, have been submitted to the EPA expressing concerns over the proposed rule and its potential costs. Kansas Sen. Pat Roberts, Agriculture Committee chair, acknowl- edged the validity of rural America’s concerns on the rule’s economic impact to these regions, saying that the EPA has provided no evi- dence to alleviate those concerns. Roberts expressed his own res- ervations about the cost-benefit analysis, citing other experts who disagree with the EPA’s assertion that the rule would have only a minimal economic impact. Even EPA Administrator Gina McCarthy admitted that the agen- cy did a poor job initially of introducing and explaining the pro- posed rule to the public. She went on to say that the amended rule would clearly define what will and will not be regulated — and that farmers will not be impacted. Rutledge has since stated that she has no confidence in McCarthy’s assurances about farmers, instead ask- ing the EPA to throw out the proposed rule altogether and start over, better addressing the concerns of numerous states and stakeholders. U.S. Senator John Boozman of Arkansas also has expressed concerns


COUNTY LINES, SUMMER 2015


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about the potential economic impact on rural Arkansas and stated that he will seek to prevent the rule from being implemented. He referred to the rule as a “power grab” by the EPA that “circumvents Congress and is beyond the intent of the Clean Water Act.” On the other side, the Arkansas Chapter of the Sierra Club stands firmly behind the bill, de- fending its clarity and “well-crafted environmental protections.” (Peter Urban, Washington News Bureau). Te final version of the Clean Water Rule was finalized on May 27,


2015, published in the Federal Register on June 29, 2015, and will be- come effective on August 28, 2015. In response, as of July 23, 2015, three different lawsuits had been filed against the EPA over the imple- mentation of the Final Clean Water Rule, by a coalition of 27 states, var- ious conservation and environmental groups, U.S. Chamber of Com- merce, National Federation of Independent Businesses, as well as others. Rutledge joined with 12 other states the day of the rule’s publica- tion in one lawsuit filed in North Dakota, alleging that the rule vio- lates the Clean Water Act, the National Environmental Policy Act, the Administrative Procedures Act, and the U.S. Constitution. Rutledge’s press release adds:


“Te States assert that the EPA’s new rule wrongly broadens federal authority by placing a majority of water and land resources management in the hands of the federal government. Congress and the courts have re- peatedly affirmed the States have primary responsibility for the protection of intrastate waters and land management. Te States argue that the bur- dens created by new requirements from the EPA on waters and lands are harmful to the States and will negatively affect farmers, developers and landowners, and thus the overall economy.”


Te U.S. District Court agreed and granted the states’ request for


a preliminary injunction, guaranteeing that the WOTUS Rule will not go into effect nor be enforced until it has been fully litigated. Te court recognized the states’ likely success in their lawsuit, stating that it appears the EPA exceeded its constitutional grant of authority and also failed to comply with Administrative Procedures Act require- ments, which ensure public participation in the rulemaking process, with its promulgation of this rule. In conclusion, the recent U.S. Supreme Court ruling in Michigan


v. EPA might provide key leverage to the claims of these states and organizations that the EPA, once seeming almost untouchable, is in fact overstepping its bounds with the Waters of the U.S. rule. It certainly bolsters the accusation that the EPA is implementing regu- lations while failing to properly account for the cost to the entities being regulated. While U.S. President Barack Obama’s administra- tion has defended the rule, the U.S. House of Representatives and a key U.S. Senate committee recently voted to rescind it. Whether the rule goes into effect is something for rural Arkansans to keep an eye on, since agriculture is Arkansas’s largest industry, contributing around $16 billion to the state’s economy annually, according to Arkansas Farm Bureau. Farm Bureau’s web site states there are 49,346 farms statewide, and that 97 percent of those are family owned. Needless to say, costly compliance and legal issues could be devastating to these farm families, and subsequently, the state’s economy as a whole if the Waters of the U.S. rule is imple- mented. Te three pending lawsuits, all in different federal courts across the nation, are worth watching and will be key in how the EPA and other federal regulatory agencies study, implement and ad- minister costly rules and regulations going forward.


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