Trump administration officials took a victory lap after they unveiled their final revisions to Clean Water Act protections for waterways and wetlands.
But the Waters of the U.S., or WOTUS, replacement rule that EPA and the Army Corps of Engineers completed yesterday must now survive a possible Democratic win in the 2020 presidential election and an expected inundation of challenges in the courts.
If, say, Bernie Sanders is elected president, he would "go immediately to every court that has challenges pending and ask that they be put on hold because he’s going to replace it," said Vermont Law School professor Pat Parenteau.
"Just the way Trump did."
The rule’s new name — the Navigable Waters Protection Rule — is a play on the phrasing of the Clean Water Act, which states it applies to the "navigable waters of the United States," a term that it defines as merely "waters of the United States."
The decision by President Trump’s EPA and Army Corps to protect streams with perennial and intermittent flows to traditionally navigable waters, but not to waterways that only flow in response to rainfall, more closely aligns with the Supreme Court’s determination that the Clean Water Act covers "commercial navigation," a senior EPA official told reporters yesterday.
He said he was confident that the courts would keep the rule intact.
"For the first time," the EPA official said, "we are recognizing that clear limit of authority that the Supreme Court has given the agencies many years ago."
Former Justice Department attorney Larry Liebesman, who now works at the consulting firm Dawson & Associates, said the Trump administration’s strategy could prove vulnerable in court.
"I can see environmental opponents saying that when Congress enacted the Clean Water Act, they made it clear the act extended to the farthest reaches of the commerce clause of the Constitution, including intrastate waters that may in the aggregate have an impact on commerce as a whole," he said.
"The reach of the commerce clause is an issue here," Liebesman said.
However, Liebesman added, a court could be wary of making any rulings based on constitutional grounds.
The Supreme Court decided in 2017 that legal fights over the Clean Water Act must first go to federal district court.
Opponents of the Trump rule will have their pick of benches across the country and are likely to file challenges in multiple venues.
A mess of litigation over the Obama-era WOTUS rule led to a regulatory patchwork in which the rule was in effect in only 22 states.
The legal morass led to heartache for the landowners, business owners and other entities that must comply with federal permitting requirements, said Kevin Minoli, a partner with the law firm Alston & Bird.
The possibility of a Democrat winning the presidency in 2020 is a concern, he said, because a new administration might want to take its shot at a fresh rule.
"That is the worst-case scenario for people who are trying to understand what responsibilities they have under the law and what tools they have to protect water quality in their community," Minoli said.
It could take years for lawsuits filed in the district courts to make their way to the nation’s highest bench, where a 5-4 conservative majority would likely be sympathetic to the Trump administration’s WOTUS interpretation.
A Democratic administration, however, could decide not to challenge a nationwide injunction of the rule, effectively killing it.
Such an injunction is possible from the 11th U.S. Circuit Court of Appeals, said Mark Ryan, a former Clean Water Act attorney in EPA’s Region 10.
That’s because the Trump rule is largely based on a 2006 opinion in Rapanos v. United States from the late Supreme Court Justice Antonin Scalia, but the 11th Circuit has ruled that a competing opinion from Justice Anthony Kennedy is the controlling one in matters of Clean Water Act jurisdiction.
"They have to get it in front of the Supreme Court to get the result they want, and they only get to the Supreme Court if they win the election," Ryan said.
"If Trump keeps the White House, there’s a decent chance he’ll get in front of the Supreme Court and get the rule he wants," he said.
A cascade of lawsuits
The legal floodgates are expected to open as soon as the Trump administration’s rule appears in the Federal Register.
Environmental groups and blue states are expected to challenge the WOTUS replacement rule. Conservative interests could also sue over the new definition on the grounds that the regulation constitutes yet another overstep of the federal government’s Clean Water Act authority, as they did with the Trump repeal rule last fall (Greenwire, Oct. 24, 2019).
The Southern Environmental Law Center, which has led green groups in their fight against the Trump WOTUS repeal rule and in their defense of the Obama-era regulation, said yesterday that it stands ready to duke it out over the new definition.
Blan Holman, a senior attorney for the center, said he expects challenges to the replacement rule would move to the top of the docket, and earlier lawsuits over the Trump administration’s WOTUS repeal would be put on ice.
If there is a change in administration, he said, the outcome would be even tougher to predict.
"If the replacement were replaced — I don’t know," Holman said. "Maybe this litigation gets mooted. It’s frustrating, and I think it’s frustrating for everybody, including the regulated community. But that’s the world we’re living in."
A coalition of states led by Democratic attorneys general is also poised to fight Trump’s WOTUS rule in court (E&E Daily, Jan. 24).
Legal experts have grappled with the Trump rule’s focus on preserving states’ role in waterway protection. The Clean Water Act, they say, was introduced because states were not fulfilling that duty.
"We don’t have to guess what Congress intended when it passed the Clean Water Act in 1972," said Anna Sewell, a senior associate attorney for Earthjustice, which has also been involved in WOTUS litigation.
"They were very aware that states were doing a poor job," she said.
WOTUS in the courts
In the final WOTUS rule, legal experts say, the Trump administration appears to be building its case that it considered both science and legal precedent for which waterways and wetlands should be subject to Clean Water Act protections.
Yesterday’s rule follows a scathing commentary issued last month by EPA’s own advisers that elements of the proposed WOTUS replacement were "in conflict with established science" and a court ruling last summer that upheld Justice Kennedy’s approach to Clean Water Act protections (Greenwire Aug. 22, 2019).
The Competitive Enterprise Institute yesterday criticized the final rule’s focus on Kennedy’s "significant nexus" test, arguing that its inclusion would hinder the Trump administration’s goal of creating a "clear and simple" rule for landowners and other permit holders.
"The question is: Is their interpretation really a true reflection of the blend of the plurality opinion in Rapanos written by Justice Scalia and the opinion written by Justice Kennedy?" said Caitlin McCoy, a climate, clean air and energy fellow with Harvard University’s Environmental & Energy Law Program.
She continued: "It really feels like they’re trying to bolster a strong case for litigation in the future."
Parenteau of Vermont Law School said he was skeptical that the Trump administration could successfully defend its final WOTUS rule in the courtroom — even in front of a conservative Supreme Court.
He said EPA and the Army Corps would be working against opposition by Justices Neil Gorsuch and Brett Kavanaugh to Chevron deference, which gives agencies leeway to interpret ambiguous laws so long as they can tell the court that their resulting rules are reasonable in light of scientific evidence, congressional intent and other factors.
In the case of the Trump administration’s WOTUS rule, Parenteau said, "the answer to all those questions is no."