Will the Supreme Court Gut the Clean Water Act?
This post was originally published on Legal Planet. Reprinted with permission.
What wetlands and waterbodies does the Clean Water Act protect? Congress failed to provide a clear answer when it passed the statute, and the issue has been a bone of contention ever since. The Biden administration is in the process of issuing a new regulation on the subject. Normally, you'd expect the Supreme Court to wait to jump in until then. Instead, the Court reached out to grab Sackett v. EPA, where landowners take a really extreme position on the subject. Not a good sign.
A little quick background: The term "navigable waters" traditionally meant water bodies that could be used for transportation. When it passed the Clean Water Act, Congress redefined the term to mean "waters of the United States." Everyone agrees that this term covers at least traditional navigable waters and wetlands on their shores. But what else is covered?
The Supreme Court has issued several rather confusing issues on the subject. The lower courts read the Court's decisions to include wetlands and tributaries that have a "significant nexus" with traditional navigable waters. In one of those decisions, Justice Scalia and three other conservatives favored a …
This afternoon, Science magazine is publishing an article [abstract available, article itself behind paywall] I co-authored with a number of distinguished environmental science professors from around the country. The article dissects the rule and shows the remarkable disregard for science that the Trump administration displayed in its recent dismantling of the 2015 Clean Water Rule, which protected millions of miles of rivers and acres of wetlands from polluters.
The article makes clear that the Trump administration’s Navigable Waters Protection Rule (NWPR), which just went into effect in June, has gutted protections for whole categories of waters despite the Clean Water Act’s express mandate that regulators protect the “chemical, physical, and biological integrity” of the nation's waters.
The scientist co-authors show how the new deregulatory action ignores or downplays what the best science establishes about the connectivity and functions of waters previously protected. The Obama-era rule …
Originally published on Environmental Law Prof Blog. Reprinted with permission.
This morning, the U.S. Army Corps of Engineers and EPA released a final rule determining which aquatic features are covered by the Clean Water Act. Already, the press coverage is following a familiar pattern: farming lobbyists praise the rule as a major victory, and environmentalists condemn it as an abdication of clean water protection and water quality science. The former part of that pattern has always been interesting to me. It's true that the farm lobby has been a prominent and effective participant in debates about this rule and its predecessors. But I think much of its participation, and the resulting press coverage, has been misleading. This new rule does offer benefits to farmers (at a likely cost to water quality), but the benefits aren't likely to be nearly as great as the rhetoric would lead …
Originally published on Environmental Law Prof Blog.
This morning, the U.S. Army Corps of Engineers and EPA released a proposed new rule that would change the agencies' shared definition of "waters of the United States." That phrase defines the geographic scope of federal jurisdiction under the Clean Water Act.
The proposed rule would narrow the scope of federal jurisdiction, primarily in two ways. First, it would eliminate jurisdiction for "ephemeral" streams – that is, streams where water flows only during and shortly after precipitation events. Second, it would eliminate jurisdiction for wetlands that lack an intermittent or permanent surface connection to navigable-in-fact waterways and that are not directly adjacent to those waterways. In practice, this will mean removing protections for wetlands that are close to surface waterways and are connected to those surface waterways through groundwater flows.
In the rule itself, and in the rhetoric surrounding …
Originally published on Environmental Law Prof Blog.
Today, the United States Supreme Court decided National Association of Manufacturers v. Department of Defense, a case determining whether challenges to the "Clean Water Rule" or "Waters of the United States Rule" should be heard in federal district court or in the United States Court of Appeals for the Sixth Circuit. The answer, the Supreme Court unanimously held, is federal district court, and the Court remanded the case to the Sixth Circuit to dismiss the appellate court petitions.
This post provides brief answers to a few likely questions about the decision.
Was this a surprising outcome? It was not. Many legal observers expected the Court to reverse the Sixth Circuit. Indeed, the two Sixth Circuit judges who concluded that they did have jurisdiction were rather unenthusiastic about their holding and blamed it primarily on precedent. The government's arguments …
Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen.
EPA and the Army Corps of Engineers just released a proposal to repeal the Clean Water Rule and to return to previous regulations. The Clean Water Rule (also known as the WOTUS Rule) would have clarified the scope of federal regulatory jurisdiction under the Clean Water Act. It was one of the Obama administration's signature environmental initiatives, and it was one of candidate and then President Trump's signature targets. So the emergence of this proposal is no surprise. Nevertheless, the contents of the new document are surprising in several ways.
First, I'm not sure I have ever seen a notice of proposed rulemaking that makes so little effort to justify the rule it adopts. EPA and the Corps seem to have offered two, and only two, justifications for switching from the newer regulations to …
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.
Last Tuesday, President Trump signed an executive order directing EPA and the Army Corps of Engineers to begin work on a new rule defining the scope of federal jurisdiction under the Clean Water Act. The rule, if and when it is finalized, would replace the "Clean Water Rule" released by EPA and the Corps during the summer of 2015. Much of the political rhetoric surrounding the Clean Water Rule has suggested that the 2015 rule was responsible for massive economic impacts and that removing it will be a source of economic relief. President Trump's own remarks, for example, were riddled with such complaints. But for several years, I've been researching the implementation of federal stream and wetland protections (the results of those inquiries appear in just-published articles here and here and in an earlier …
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 …
