President Trump ordered EPA and the Army Corps to review the Obama Administration’s Waters of the United States (WOTUS) rule, which sets expansive bounds on federal jurisdiction over water bodies and wetlands. The agencies have sent the White House a proposal to rescind the WOTUS rule and revert to earlier rules until they can come up with a replacement. In my view, either the agencies will have to dive deep into the scientific thicket in the hope of justifying a new rule, or they will have to gamble that Trump will get another Supreme Court appointment before their action gets to the Court.

The Current State of Play

To set the stage, WOTUS (short for “Waters of the United States”) is a response to the Rapanos decision, in which Justice Scalia and three others judges argued for a very narrow definition of federal jurisdiction over streams …

Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen

Today, the United States Supreme Court released its opinion in US Army Corps of Engineers v. Hawkes, Co. The key question in Hawkes was whether a Clean Water Act jurisdictional determination – that is, a determination about whether an area does or does not contain waters subject to federal regulatory jurisdiction – is a final agency action within the meaning of the Administrative Procedure Act. According to a unanimous court, a jurisdictional determination is indeed final agency action.

The majority opinion, written by Justice Roberts, presents the kind of short, businesslike analysis one typically associates with an uncontroversial case. But then comes Justice Kennedy's concurrence, and it's a doozy. In three paragraphs, Justice Kennedy (joined, perhaps not so surprisingly, by Justices Alito and Thomas) asserts that "the reach and systemic consequences of the Clean Water Act …

This afternoon, the Fisheries, Water, and Wildlife Subcommittee of the Senate Environment and Public Works Committee will convene a hearing on a topic that is fast becoming the congressional conservative equivalent of talking about the weather: the Environmental Protection Agency's (EPA) Clean Water Rule. 

With the provocative title of "Erosion of Exemptions and Expansion of Federal Control – Implementation of the Definition of Waters of the United States," the hearing is unlikely to provide a sober or thoughtful forum for evaluating the rule's merits. Nevertheless, Center for Progressive Reform Member Scholar Bill Buzbee, who has been tracking this critical safeguard for several years, will do his best to keep the proceedings grounded in reality by offering testimony that rebuts the many "legally and factually erroneous" attacks that are now frequently made against the rule. 

Corporate polluters and their allies in Congress have a knack for conjuring controversy …

Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen.

Right now, the United States' second-most-heated environmental controversy—behind only the Clean Power Plan—involves the Clean Water Rule, which seeks to clarify the scope of federal regulatory jurisdiction under the Clean Water Act. According to its many opponents, the rule is one big power grab. EPA and the Army Corps of Engineers, according to the standard rhetoric, are unfurling their regulatory tentacles across the landscape like some monstrous kraken, with devastating consequences for key sectors of the American economy.

In a forthcoming article, I argue that this rhetoric is false, and that it also misses a much more interesting true story. The Clean Water Rule is indeed part of a major regulatory transformation, which has extended and transformed regulatory protections for small streams. But the Clean Water Rule is just a small part …

Since Justice Scalia’s passing, the blogosphere has been abuzz with speculation about how the changed composition of the Court will affect environmental law. This post adds a little more to that speculation. My focus is not the Clean Power Plan litigation, which has (justifiably) gathered much of the attention, but instead the litigation over the joint EPA-Army Corps Clean Water Rule. And my prediction is a bit different from most predictions about the Clean Power Plan. Here, I predict, that changes in court composition probably won’t matter much.

Before I explain the reasons for that prediction, a little context may be helpful. The Clean Water Rule (also sometimes referred to as the Waters of the United States Rule (or just WOTUS)) determines the geographic scope of federal jurisdiction under the Clean Water Act. The Army Corps and EPA jointly released the rule last summer. Its …

Last week, the United States Court of Appeals for the Sixth Circuit issued a nationwide stay of implementation of the new Army Corps/EPA Clean Water Rule.  This sounds like a very big deal, and the state plaintiffs who won the stay will no doubt describe this as a major victory.  Those proclamations will conceal, however, a few layers of complexity and irony.

The legal basis for the ruling is an administrative law principle known as the logical outgrowth rule.  Under this principle, a final rule can be different from a proposed rule, but it still must be a logical outgrowth of that proposed rule; it cannot be something completely new.  That principle flows from the basic Administrative Procedure Act requirement for notice and an opportunity to comment.  Neither is present when an agency’s final rule does something no one reasonably could have expected, and upon …