Water Policy

Dawson & Associates' Liebesman discusses next steps on Obama water rule, Hawkes case

As jurisdictional questions continue to surround the legal action on the Obama administration's Waters of the U.S. rule, what are the implications of these challenges and the timeline for the legal proceedings? During today's OnPoint, Larry Liebesman, a senior adviser at Dawson & Associates and a former senior trial attorney in the Department of Justice's environmental division, discusses next steps on the contentious rule. Liebesman also gives analysis of the Supreme Court's recent hearing of oral arguments in U.S. Army Corps of Engineers v. Hawkes Co.

Transcript

Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. With me today is Larry Liebesman, a senior adviser at Dawson & Associates and a former senior trial attorney in the Department of Justice's environmental division. Larry, thank you for joining me again.

Larry Liebesman: Pleasure to be here again, Monica.

Monica Trauzzi: Larry, since we last spoke, there's been quite a bit of legal action on the Obama administration's contentious Waters of the U.S. rule. Industry groups are now asking the 6th Circuit to reconsider its decision that federal appellate courts should have jurisdiction to hear challenges under the Clean Water Act. Why has this jurisdictional issue received so much attention and what are the legal impacts of what we've already seen?

Larry Liebesman: Well, I think it's so -- it depends on the differing interpretations of jurisdiction under the Clean Water Act. Clean Water Act has a very narrow avenue of judiciary review of EPA Action Section 509, and there's been a lot of disagreement among the courts about how to interpret what is subject to review. And so what we're facing right now is different courts around the country interpreting whether they have jurisdiction or not. We had the court in North Dakota says -- interpreted the judiciary review provision to say that it's not a formal ... guideline or regulation; it's a definitional rule, so the jurisdiction's in the federal district courts. Then you have the 6th Circuit that consolidated all these petitions in review and came out with kind of a very interesting opinion that rule that jurisdiction's in the court of appeals. But in that opinion, you basically had three different rulings, and two judges basically said we have jurisdiction but one disagreed with the main judge.

So I think what this boils down to, Monica, is judicial confusion over the language of the rule and also policy interpretations because I read some courts as sort of saying, well, it's better public policy and more efficient way to deal with it for jurisdiction to be, for example, in the court of appeals. That's the government's argument. And then you have other judges like the one in North Dakota, for example, that seems to take a look at the language, and in terms of policy and the desire to address the merits and said, well, I read the law, but I tie that to policy interpretations, applying the law to the policy to say I should have jurisdiction in federal district court. So it's a crazy quagmire of jurisdiction that makes it very hard to actually get to the merits of the challenge, but yet it is going to be spinning around now with this petition for rehearing and ... in the 6th Circuit that could -- who knows where that's going to come out or when that decision will be issued.

Monica Trauzzi: Wow. It sounds like it's pretty muddy. The waters are pretty muddy.

Larry Liebesman: Oh yeah, once again, you know, it's a muddy quagmire.

Monica Trauzzi: Yeah. GreenWire recently reported Justice Kennedy's remarks that the Clean Water Act is arguably unconstitutionally vague. Critics of Waters of the U.S. believe that this basically puts a fork in the rule. How significant are his comments to the future ...

Larry Liebesman: Well, yeah, let me just say that -- preface that, your response to your question, Monica. His comments were out of context because the case in front of the Supreme Court last week, the Hawkes case, really didn't deal with constitutional issues. It dealt with whether a jurisdictional determination is final agency action, but he made a comment offhanded, and seeming to side with the landowner on -- and saying, by the way, the Clean Water Act, in his view, could very well be unconstitutionally vague. It's a very nebulous, you know, concept that has an impact on landowners. So that suggests, in my way of thinking, that he may have second thoughts about the effect of his significant nexus ruling in Rapanos in 2006. He may -- and again, this is tea leaves. It's hard to read things in a comment --

Monica Trauzzi: But that could have an impact, then, on Waters of the U.S.

Larry Liebesman: Well, it wouldn't have an immediate impact because his comment is not something that is germane to -- directly germane to the issue in front of the Supreme Court. Now, that could -- that comment could be picked up by a judge who is inclined against the rule and said Justice Kennedy has made this comment in the Hawkes case about that, which suggests to me as a judge that maybe he has some concerns about it, and that could provide some support or ammunition for that judge who is inclined to strike down the rule. That's all, again, speculation. One -- you really never know what impact this might have.

Monica Trauzzi: And we'll get back to the Hawkes case in just a second. Just a timeline question. What timeline are we looking at for the legal proceedings on WOTUS, do we know? Is it clear?

Larry Liebesman: On WOTUS?

Monica Trauzzi: Yeah.

Larry Liebesman: I think right now you're looking for several months before the 6th Circuit will rule. And remember, the stay remains in effect, so the rule cannot be enforced nationally. So you're looking probably at several months until a decision -- actually several months until a decision is made on whether to accept rehearing in. ... That may be a month or two. If they accept, if the 6th Circuit says the full court's going to hear that, then that has to be set for oral argument in front of all the judges in the 6th Circuit. That could yet take another month or two. And then, of course, a timing for ruling. So I think you're looking at a good number of months down the road if the -- if the 6th Circuit decides to take the case in front of the full court.

Monica Trauzzi: In the meantime, there are also continued efforts in Congress to try to block the rule despite the stay. Are these efforts more about keeping sort of the focus on the rule and continuing to politicize and publicize it?

Larry Liebesman: Yeah, I mean, I think their efforts, those that think the rule has gone too far to keep the issue alive, that Congress is dealing with so many issues, it's an election year. So I think there's certainly concern on the part of industry and the trade associations to continue lobbying. You know, you have to sort of maintain those relationships, say the issue's important, it's having a real effect on our members, and you don't forget about our issue, you know, because it's not going to go away, it will continue on. So I think that's what's really driving the effort to continue to push this issue in Congress even though I think it's highly unlikely that you're ever going to see anything that the president would ever sign.

Monica Trauzzi: So back to the Hawkes case, the Supreme Court recently heard arguments, as you said, on this case, water permitting appeals. Why is this such a critical case, and based on what you heard during the hearing, could this ultimately prove to be an issue for the Obama administration?

Larry Liebesman: Well, I think it's a critical issue because so many land owners are affected by these jurisdictional determinations over areas that they think are dry, that don't meet the definition of Clean Water Act. And so it's significant in that sense because, for years, the government would say you cannot go to court to challenge this jurisdictional determination. It's not final agency action, does not have an effect on you. So essentially, landowners were in the middle of a catch-22. If they think the jurisdictional determination has gone too far, then they're forced into either getting -- applying for permits, spending hundreds of thousands of dollars over a permit they think they don't need, or filling anyway facing enforcement action, where the third option would be to walk away from a project altogether. So the fact that they cannot -- have not been able to get into court up until now, except for the Hawkes case in the 8th Circuit, has had a real impact on land owners. The government has been winning these cases, by and large.

So why this is significant is because the court, for the first time, is addressing whether to expand Sackett, which is the Supreme Court decision a number of years ago ... administrative enforcement actions to jurisdictional determinations. Whether that -- the rightness then -- I'm sorry, the finality theory of issue in Sackett applies to jurisdictional determinations. Where I think the court is going, having looked at -- you know, heard the argument, looked at the transcript closely and thinking about it, is I think there's a very good chance that the Supreme Court is going to go with Hawkes. They're not going to side with the government. And I think you had a number of comments from liberal justices who are very concerned about what does this mean in the real world, the impact on a landowner, the test of finality or the legal consequences. Even Justice Breyer raised those concerns, Justice Ginsberg, Sotomayor, so I think you're going to see a decision that will most likely say these -- this jurisdictional determination can be reviewed.

But the other aspect of it I think is significant is how broad or narrow will that decision be. Justice Sotomayor, even as the deputy solicitor general, well are there ways, you know, can we narrow this -- the effect of this ruling, and Justice Kagan had a number of questions about what about informal advice given by numerous agencies like, you know, IRS? You know, people depend on this kind of advice, informal advice. Does that mean if we say courts -- you can go into court to challenge a jurisdictional determination, is that going to be a can of worms? Is that going to open up challenges? So you may very well see a narrowly tailored decision specific to the Clean Water Act.

Monica Trauzzi: Very interesting stuff. Thank you for helping dissect it all. We'll end it there.

Larry Liebesman: OK.

Monica Trauzzi: Thanks for coming on the show.

Larry Liebesman: OK, thank you, Monica.

Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.

[End of Audio]

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