Apr 22, 2020
The Trump administration today finalized its controversial definition of what marshes, wetlands and streams quality for protections under the Clean Water Act.
But don’t expect regulatory certainty anytime soon.
EPA published its Navigable Waters Protection Rule in the Federal Register this morning, nearly four months after the administration unveiled the rule.
Publication starts a 60-day clock before the rule goes into effect and waves a green flag for an onslaught of lawsuits likely to be filed around the country. The litigation will undoubtedly run beyond Election Day, so the future of the rule likely depends on whether Trump wins a second term.
Environmentalists and several left-leaning states have signaled they are ready to sue, saying the rule — which cuts protections for most of the country’s wetlands — is far too narrow.
On the other side, at least one conservative group stands ready to file, arguing the rule doesn’t go far enough in paring back the Clean Water Act’s reach.
Because of how litigation plays out under the Clean Water Act, the Trump rule will likely end up in effect in some parts of the country but not others.
“What we’ll have is a patchwork mess,” said Mark Ryan, a former Clean Water Act attorney in EPA’s Region 10.
Under the Clean Water Act, lawsuits must start in federal district courts, which means challengers can file them all over the country.
Those cases will proceed simultaneously. Based on a recent Supreme Court ruling in an immigration case, it is unlikely a federal district court judge will issue a nationwide injunction blocking the rule across the country.
But the judges can issue stays within their regional jurisdictions.
The same thing happened with the Obama-era Waters of the U.S. rule, known as WOTUS, which ended up covering only 22 states.
The likelihood of at least some regional stays is “pretty high,” Ryan added, because EPA legally based the rule on former Justice Antonin Scalia’s opinion in the 2006 Rapanos v. United States decision.
Scalia earned only four votes with that opinion — not a majority of the court — and not a single federal appeals court in the country has agreed his definition should govern Clean Water Act regulations.
“I have a hard time seeing how any court upholds this rule,” Ryan said.
EPA has said its rule is legally defensible.
An EPA spokesperson today highlighted remarks by Administrator Andrew Wheeler when the rule was unveiled.
EPA and the Army Corps of Engineers, he said, “are providing much needed regulatory certainty and predictability for American farmers, landowners and businesses to support the economy and accelerate critical infrastructure projects.”
The rule, he added, “strikes the proper balance between Washington and the states … and it does so within the authority Congress provided.”
But while EPA appears confident about the legal underpinnings of the rule, its own advisory board has raised questions about its science.
The agency’s Science Advisory Board issued a scathing commentary last month that said the rule is not rooted in up-to-date science. The 44-member panel said the exclusion of groundwater, ephemeral streams and wetlands that connect to major bodies of water underground appears to contradict current research.
In response, EPA said its rulemaking is bound by Supreme Court precedent and congressional authority; the board wasn’t when it reviewed the regulation.
But several lawyers, including Blan Holman of the Southern Environmental Law Center, which has been active in challenging EPA’s water rules, suggested the commentary will be Exhibit A in the litigation challenging the rule (Greenwire, March 6).
Holman said it is hard to predict how the litigation will play out, in part because much will depend on the federal district courts and the individual judges presiding over those cases.
He noted that in all the cases concerning the Obama-era rule, it was never vacated, meaning it was never entirely thrown out by a court. What happens if one district court does that to the Trump rule? What set of Clean Water Act regulations would apply in that area?
“If it is ever vacated, the question would be, what’s in place?” Holman said. “We are in slightly uncharted territory in terms of Clean Water Act litigation.”
‘Dangerously weaker version’
Environmental groups this morning quickly announced their intentions to sue.
The Maryland-based groups Chesapeake Bay Foundation and ShoreRivers said the new rule is a “dangerously weaker version” of the definition Obama’s EPA and Army Corps crafted.
They claimed the new rule would remove protections for wetlands and streams that feed the Chesapeake Bay’s 64,000-square-mile watershed and compromise the region’s $65 billion outdoor recreation industry.
“The stakes are too high to allow this dangerous rule to stand,” Jon Mueller, vice president of litigation for the Chesapeake Bay Foundation, said in a statement today.
Holman’s Southern Environmental Law Center, which previously sued over the Trump administration’s repeal of the Obama-era WOTUS definition, highlighted opposition from former EPA and Army Corps officials over the rollback and criticized Trump officials for softening water protections during the novel coronavirus pandemic.
“As communities throughout the country battle a growing public health crisis,” Holman said, “this administration is intent on stripping away long-established protections against pollution in the rivers and lakes Americans rely on for drinking water.”
Path to regulatory clarity
There is one way to get more regulatory clarity: Get the issue back to the Supreme Court.
Some experts said the high court’s conservative 5-4 majority appears to be what the administration and conservative groups like the Pacific Legal Foundation are banking on.
The Sacramento, Calif.-based PLF said it stands ready to file.
“Several of our clients have expressed their concerns about the new definition,” senior attorney Tony Francois said in an email, “and have expressed their readiness to protect their and their members’ legal rights in court when the rule is published.”
The legal fight will almost certainly stretch beyond Election Day.
But critics of the rule say that even if presumptive Democratic nominee Joe Biden wins the White House, that won’t create any certainty.
A Biden administration would almost certainly undo the Trump EPA rule and promulgate its own. But that rule would then end up in court.
“It’s not going to get any better even if Joe Biden becomes president,” Ryan said. “What we’ll have is we’ll get the negative of this.”