This article is a commentary on the content discussed in the E&E News PM article: “Judge shifts legal brawl, revives WOTUS in 26 states“ by Ariel Wittenberg and Amanda Reilly.
Environmental Policy Issue at Hand: The existence of the Waters of the United States rule (WOTUS rule), covered by 33 CFR § 328, 40 CFR § 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401. The issue concerns the WOTUS rule’s legality under the Constitution of the United States and under the Clean Water Act (33 USC § 1251).
As the Trump Administration prompted the Environmental Protection Agency (EPA) to delay the implementation of the WOTUS rule via Executive Order 13778, a number of parties filed suit, alleging that by issuing the “Suspension Rule,” the Trump Administration failed to procedurally comply with the Administrative Procedure Act (APA) as it had not given adequate public notice and the ability to comment.
Following the arguments, federal judge David C. Norton from the United States District Court of South Carolina, Charleston Division issued a nationwide injunction on the delay, effectively reviving the regulations in 26 states. In the other states, suits in district courts which placed injunctions upon the implementation of the WOTUS rule continue to have pending outcomes after the United States Supreme Court stated that circuit courts do not have original jurisdiction to review the WOTUS rule. This nullified the nationwide injunctions against the WOTUS rule that the Sixth Circuit had previously issued, restricting the proximity of previous outcomes to only the states the disputes occurred in. And so, in states where suits did not lead to injunctions against the WOTUS rule, it has the full regulatory power of law.
The extent and implementation of the WOTUS rule will have huge implications for individuals, corporations, non-governmental organizations, universities, municipalities, counties, and states. Firstly, this proposed expansion of jurisdiction of Environmental Protection Agency’s (EPA) and Army Corps of Engineers (ACE) authority would, given the ACE’s aggressive enforcement of regional district policies that were not part of the Code of Federal Regulations (CFR), give a stamp of legal justification to ACE agents’ forceful compliance measures, publicized in a US Senate Report. I know of three possible methods to at least alleviate the issues discussed.
Rescinding the WOTUS Rule Entirely: The position of the Trump Administration, at least thus far, has been to rescind the WOTUS rule entirely and go back to pre-2015 regulatory status. The issue with this approach is that Rapanos v. United States, 547 US 715 (2006) left the definition of a “significant nexus” around navigable waters that needed to be protected under the Clean Water Act with a lack of clarity for both legislators and justices.
Given Congress’ delay in updating the Clean Water Act significantly, the duty to address what “significant nexus” meant fell to the agency that Congress delegated (to avoid non-delegation doctrine issues) to specify which waters could be legally protected: the EPA (and, to some extent, the ACE).
This would potentially reduce the completion time for major infrastructure projects, such as the completion of the southern portion of Interstate 540 (which was, at one point, planned to go straight over the wetlands of endangered mussels, generating compliance difficulties with the Endangered Species Act as well). The future implications are such: vagueness and further regulatory specifications down the line. However, there will be fewer instances of EPA and ACE officials acting in a manner that could legally be considered a “taking.”
Adjusting the WOTUS Rule: Another proposition, is to ensure that the WOTUS protections are clear and well defined, but also respect the ability to conduct economic activities without significant burdens.
It was strangely difficult to find individuals speaking of this route while simultaneously commentating on the GenX dumping scandal in North Carolina, but in an opinion piece for StarNews Online, Derb Carter had this to say: “New leadership at the EPA is proposing to eliminate many small streams and perhaps most wetlands from the requirement to obtain a permit prior to discharging pollutants. Four decades of progress in cleaning up the nation’s waters is at risk if the EPA is allowed to remove waters from protection. Whether it is GenX or any other pollutant, the only effective way to prevent pollution is at its source.” While I believe this statement to be a gross exaggeration (considering the rescinding of the 2015 WOTUS rule would only leave the regulatory status in a 2015 state which followed Rapanos and not extending back 40 years), it made me wonder why individuals seemed to conceive of the EPA as the only institution of weight here.
Why has seemingly no individual published a piece or report about the State of North Carolina’s Department of Environmental Quality (NCDEQ) to respond to this with its own statewide legislation?
The WOTUS rule could be adjusted to grant the states the power to add their own additional permitting protections, and perhaps to restrict the states from delegating it further to counties and municipalities so that a greater sense of uniform standards could be achieved, at least on the state level of government. As this is hypothetical in nature, I cannot say what future implications would be other than that regulations would potentially be clearer.
Keeping the WOTUS Rule in Effect: The WOTUS rule could also be left untouched, and leaders and the rest of the government could simply observe and see how its implementation would play out, on the condition that perhaps it would undergo a ‘sunset’ provision, limiting the length of time the regulations could be in effect.
This could also prompt Congress to, once and for all, by statute, define the extent and protections of waters of the United States. Future implications are also unclear.
If Congress were to create a statute on the matter, this would create barriers to further regulation on the matter precisely because there would be no need to generate new ones. However, these regulations would be replaced with case law, as interest groups concerned with environmental regulations would attempt to use courts as a means to advance policy.
This would particularly be the case if the current polarization in Congress prompts sponsors to utilize vague language in such theoretical legislation, as such vagueness is always subject to the attack of attorneys.
If this were to happen, I would personally like to see a circuit court generate a case law standard for prohibiting dumping of substances whose effects on human health have not been extensively studied (such as GenX). This would be done on grounds of the precautionary principle and in deference to human health over the short-term business interests that have not been subject to thorough EPA risk assessment testing.
In conclusion, it will require Congress to address the situation in full, as the EPA and the ACE address the jurisdictional issues of waters of the United States on their own without causing significant problems for individuals and organizations across the nation.