Executive order on clean water little more than ‘paper tweet’

Earlier this week, President Trump signed an executive order directing the U. S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) to review the Clean Water Rule, also known as the Waters of the United States (WOTUS) rule, and rescind or revise the rule.

Opponents of the rule declared victory while supporters felt the executive order was a disaster. But the rule has been under a judicially-imposed nationwide stay since shortly after it was promulgated and cannot be rescinded or revised by the president. 

{mosads}Though without immediate effect, the executive order reflects the administration’s policy regarding the WOTUS rule. Echoing the president’s campaign statements that the rule constituted disastrous over-regulation, the executive order declares the federal government must keep navigable waters free from pollution while also promoting economic growth and respecting the constitutional roles of Congress and the states.

The executive order declares any rule replacing the WOTUS rule should adhere to Justice Antonin Scalia’s narrow interpretation of navigable waters in the Supreme Court’s 2006 decision in Rapanos v. U.S. That case split 4-1-4, with Justice Scalia drafting a plurality opinion joined by three justices.

Justice Scalia held that the EPA and the Corps’ regulatory authority under the Clean Water Act extended only to traditional navigable waters, “relatively permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters, and “wetlands with a continuous surface connection” to traditional navigable waters.

Four justices dissented and Justice Anthony Kennedy wrote a separate opinion. Justice Kennedy adopted a much broader definition of navigable water than Justice Scalia, holding the EPA and the Corps had regulatory authority if a water has a “significant nexus” to downstream traditional navigable waters.

But the significant nexus test requires a complex and heavily fact-based analysis. When promulgating the WOTUS rule, the EPA and the Corps insisted they were simply clarifying the significant nexus test.

As the executive order acknowledges, mere action of the president cannot rescind or revise the WOTUS rule. Hours after President Trump signed the executive order, EPA Director Scott Pruitt circulated a draft notice for publication in the Federal Register of the EPA’s intent to review and rescind or revise the rule.

The draft notice confirms the only procedural method for rescinding or revising the rule is through rulemaking under the federal Administrative Procedure Act, which could take years. Any attempt to rescind or revise the rule will also require the EPA and the Corps to develop an administrative record justifying their decision, and any replacement for the WOTUS rule will be subject to challenge in the courts.

To act more quickly, the administration could use the budget process to block the WOTUS rule’s implementation. If the courts lift the current WOTUS rule stay or uphold the current rule, the Trump administration’s budget for the EPA and the Corps could propose to withhold funds for implementation.

If Congress agrees, the budget could prevent federal agencies from implementing the WOTUS rule while the administration undertakes the lengthy effort to rescind or revise the rule.

Finally, the executive order requires the EPA and the Corps to provide notice to the U.S. Justice Department of the “pending review” of the WOTUS rule so the Attorney General may, “as he deems appropriate,” inform federal courts of the review. In 2015, there were numerous pending challenges to the current WOTUS rule in federal district courts and courts of appeal, including a consolidated petition for review in the Sixth Circuit.

In February 2016, the Sixth Circuit held it — and not United States District Courts — had jurisdiction to hear legal challenges to the final WOTUS rule. After that decision, several district courts dismissed challenges to the rule on jurisdictional grounds.

But in January 2017, the Supreme Court granted a petition for certiorari to review the Sixth Circuit’s jurisdictional determination. The case is likely to be argued and decided by the end of the Supreme Court’s June 2017 term.

It is unclear how review of the WOTUS rule directed by the executive order will affect pending litigation. The administration will attempt to keep the rule from taking effect while the EPA and the Corps conduct a review and go through notice and comment rulemaking.

But the Sixth Circuit or the Supreme Court may not dismiss litigation based solely on a pending review of the current WOTUS rule. Even if the Justice Department moves to dismiss or stops defending the action, states and other groups in the case could continue to defend the rule.

Thaddeus R. Lightfoot is a partner at the international law firm of Dorsey & Whitney. He has practiced environmental law for nearly 30 years, including as a trial attorney with the Environment and Natural Resources Division of the U.S. Department of Justice. 

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