Since the last edition of Environmental Notes, President Trump has taken two significant actions concerning the environment. First, he has begun the process to rescind or revise the Clean Water Rule, EPA’s regulation that seeks to define the scope of federal jurisdiction over wetlands and other Waters of the United States (“WOTUS”). Second, he has proposed slashing EPA’s budget by a whopping 31%. Each of these actions is discussed below.
Clean Water Rule
President Trump signed an Executive Order on February 28 directing EPA to revisit its rule defining WOTUS under the Clean Water Act. The rule, issued by EPA and the Army Corps of Engineers, sought to provide clarity on the limits of federal jurisdiction under the Clean Water Act. Uncertainty concerning the extent of federal jurisdiction has been rampant for years. The Clean Water Act itself is of no help. The Act applies to “navigable waters,” and then goes on to define that term as “waters of the United States.” That’s about as clear as mud.
As a result, courts and federal agencies have struggled for decades to determine when wetlands and other WOTUS are subject to federal jurisdiction. In Rapanos v. United States, the United States Supreme Court held the government erred in determining that the wetlands at issue in the case were jurisdictional, but the Court could not agree why. Writing for a plurality of the Court, Justice Scalia believed jurisdiction should be limited to “relatively permanent, standing or continuously flowing bodies of water,” excluding ephemeral or intermittent streams and most drainage ditches. In his concurring opinion, Justice Kennedy determined that a “significant nexus test” was more appropriate. Under this test, jurisdiction would apply if a hydrologic connection could be established between wetlands and truly navigable waters. Most courts have applied Justice Kennedy’s test, but the problem is that it requires a case-by-case review and the exercise of best professional judgment by the Corps of Engineers. The Clean Water Rule sought to reduce much of the regulatory uncertainty surrounding WOTUS, but in the process extended jurisdiction by rule to a number of areas that opponents of the rule believe to be unwarranted.
More than one million comments were filed during the public comment period after the proposed rule was issued in April, 2014. The final rule was issued in June, 2015, and EPA and the Corps were quickly sued in more than 15 United States District Courts. In addition, more than 20 petitions for review were filed in various United States Circuit Courts of Appeal. One of those Courts of Appeal – the Sixth Circuit – issued a nationwide stay of the rule in October, 2015 pending its review of the rule. Thereafter, the United States Supreme Court agreed to decide which of the many courts in which the rule had been challenged had jurisdiction to hear the case.
It’s difficult to know how the rule will be dismantled, but all indications are that’s what will occur. President Trump’s Executive Order has no legal effect other than to start the process of having EPA revisit the rule. That process is likely to take years because any new regulatory action EPA proposes to take must go through public notice and comment. In addition, it’s a sure bet there will be significant litigation filed over any attempt by the Trump Administration to rescind or revise the rule. In the meantime, the United States Supreme Court is likely to weigh-in. First up will be a ruling by the Court on which lower court has jurisdiction to hear the challenge to the rule. Once that ruling is made and a lower court decision is issued, then the Supreme Court is likely to rule on the merits. Based on our expectation that Judge Gorsuch will be a member of the Supreme Court by then, we expect the rule to go down to defeat in a 5-4 decision. Of course, there’s always the possibility the courts will delay action on the rule if EPA indicates it plans to revise or rescind it. What’s the bottom line? It’s this: The Clean Water Rule is unlikely to ever see the light of day; it’s just a matter of how and when it dies.
EPA’s Budget
Like him or hate him, President Trump has done what he said he would do. The President’s proposed budget reduces funding for EPA by 31% from its 2017 funding levels. That’s a $2.6 billion cut and will result in the elimination of about 3,200 EPA positions and more than 50 programs. The proposed budget eliminates all funding for the Clean Power Plan as well as funding to reduce nutrient pollution in the Chesapeake Bay and the Great Lakes. As expected, numerous environmental groups and members of Congress have announced their strong opposition to the President’s plans.
We agree there is no chance the budget as proposed will pass. However, perhaps it’s part of President Trump’s negotiating style to take an aggressive position knowing full well it won’t be accepted, and then negotiate from there. There’s more to come from President Trump on the environment, and we’ll keep you apprised.
