When the Supreme Court decided that the district courts
had jurisdiction over challenges to the Obama administration WOTUS
rule,
I described it as a victory of the "give me a break"
doctrine of statutory interpretation over the "just plain
nuts" theory. I also noted that the Supreme Court had the
luxury of ignoring the chaos that would ensue.
Whatever one may think of the merits of the competing theories,
two district court decisions in the past week have made clear that
it is, indeed, just plain nuts to have these cases before the
district courts.
First up, Texas v. EPA, in which Judge George
Hanks (an Obama appointee, no less) ruled that EPA and the Corps of
Engineers had violated the Administrative Procedure Act in two ways
by promulgating the 2015 Rule. First, while the proposed rule had
defined "adjacent waters" based hydrogeological criteria,
the final rule used specific numerical distance criteria instead.
The Court concluded that the use of distance
