CPR Member Scholars to EPA: Clean Water Rule Rollback Based on Bad Law, Weak Science

The federal Clean Water Act has been a resounding success as a tool for restoring our nation's waterways and preserving wetlands and other vital components of our ecosystems. But that success depends, in part, on restricting development in ecologically sensitive areas. That's why the Trump administration has proposed to narrow the scope of the Clean Water Act's protections. Not by amending the law, mind you – that wasn't possible when Republicans controlled both houses of Congress, much less now. Instead, the Trump administration is trying to weaken the Clean Water Act by redefining what it means for something to be a "water of the United States."

If history is any guide, and CPR Member Scholars' assessment of the proposal suggests it will be, the Trump administration's proposal will fail. It will fail because, as Member Scholar William Buzbee recently put it to a Washington Post reporter inquiring about the administration's string of court losses on regulatory matters, the administration has once again "made it very easy for the courts to reject them because they're not doing their homework."

In their comments on the proposal, CPR Member Scholars touch on three ways EPA has again been a lackadaisical student of law, policy, and science:

1. The proposed rule fails to address impacts on water quality: "While the agencies acknowledge, as they must, that the rule would remove water quality protections for thousands of streams and wetlands, they have made no attempt to describe where or how water quality would worsen as a consequence of this rule. Nor have they attempted to assess the extent of secondary consequences associated with that increase in water pollution; impacts on drinking water quality, impacts on environmental systems, and impacts on progress toward Congress's codified goals of fishable and swimmable waterways are simply not addressed. Nor have the agencies even attempted to quantify the number of streams or wetlands that would lose protection as a consequence of this rule, or the economic consequences of depriving them of that protection."  
2. The proposed rule misunderstands Clean Water Act federalism: "Federalism, as understood by the authors of this proposed rule, distills to one simple principle: States should have the latitude to allow pollutants to enter more streams and wetlands and to allow more human activities to take place, and infrastructure to be built, in places that flood, all without any restraint from the federal government. The authors' understanding of federalism also derives from a recurring assumption, which is that states lack authority over waterways where federal jurisdiction exists. They claim that the rule 'is intended to strike a balance between Federal and State waters…,' as though these are two completely separate things, and that limits on federal authority are necessary to 'ensure that States retain authority over their land and water resources' and to 'restore the authority of States, Tribes, and local governments.' 84 Fed. Reg. at 4156, 4169, 4196. But the former principle offers a strange sort of federalism, and it is clearly not the sort of federalism Congress had in mind when it enacted the Clean Water Act. The latter assumption is just plain wrong. In reality, the Clean Water Act envisions a model of collaboration and overlapping authority, and within that model, federal authority often bolsters rather than displaces the authority of states."  
3. The proposed rule misunderstands the Constitution: "Intertwined with the proposed rule's misunderstanding of federalism is a misunderstanding of constitutional doctrine. The agencies insist that the scope of federal Clean Water Act jurisdiction can derive only from Congress's commerce power over navigation, and that this power requires the narrow jurisdictional scope that they propose. See 84 Fed. Reg. 4201 (citing SWANCC, 561 U.S. at 168 n.3). But this theory is wrong. The relevant constitutional question is whether the Commerce Clause would authorize jurisdiction under any prong of the Lopez analysis. And the answer—even if one were to artificially limit the inquiry to Congress's power over channels of interstate commerce—is that broader jurisdiction would clearly be constitutional. The agencies' constitutional half-arguments therefore provide no basis for their proposed rule."

The comments provide much deeper commentary and analysis on each of these points. You can read them in full on CPR's website.

Our thanks to CPR Member Scholar Dave Owen for taking the lead on drafting these comments.