How significant could this week's decision by the Supreme Court to continue to hear litigation over the Clean Water Rule be to the Trump administration's environment agenda? 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, explains how the court's proceedings could intersect with the administration's plan to revise or rescind the current water rule. Liebesman also talks about how the lack of certainty over the rule affects the private sector.
Monica Trauzzi: Hello and welcome to OnPoint. I'm Monica Trauzzi and with me today is Larry Liebesman, a senior adviser at Dawson & Associates and a former senior trial attorney in the Department of Justice environmental division. Larry, thank you for joining me again.
Larry Liebesman: Glad to be here, Monica.
Monica Trauzzi: So news this week that the Supreme Court will continue to hear litigation over the Clean Water Rule. Why is it significant and how does it fit into the bigger puzzle that has become Waters of the U.S.?
Larry Liebesman: Well, it's potentially very significant because the Trump administration filed a motion into stay or briefing, put it on hold on the theory that they would then have plenty of time to implement the Trump administrative order saying we're going to rescind and perhaps re-promulgate new orders of the Waters of the U.S. So they figured they had plenty of time while the rule is being stayed if the Supreme Court decided not to hear the case anymore on the jurisdiction.
So the fact that the Supreme Court has rejected the motion and said ... briefing means that the court is going to rule on what court has jurisdiction to review the Obama administration Waters Rule. And they could very well come out with a ruling by the end of the year and find that the 6th Circuit did not have jurisdiction initially and that could have real significant effects on the policy and strategy of the Trump administration in revoking the rule.
Monica Trauzzi: So if they find that the 6th Circuit did not have jurisdiction, that would then mean what?
Larry Liebesman: Well, what that means is that the 6th Circuit would not have had jurisdiction to issue the stay to begin with.
Monica Trauzzi: Right.
Larry Liebesman: You know and that sends everything back to sort of ground zero and essentially would revoke the stay. That's saying to the 6th Circuit you could not have issued the stay to begin with; you didn't have jurisdiction. And that could mean that the Obama administration's Waters Rule could become — go in effect unless some other court were to stay it and so that — and it creates a tremendous quagmire from a litigation standpoint because there are some 13 or 14 pending district court cases that have been put on hold waiting for the 6th Circuit to rule on their merits.
So what that would mean essentially is that the Trump administration that apparently determined, you know, we want to go through a new rulemaking. That's going to take time. It took four years for the original Obama rule to be implemented. May have to accelerate their strategy in trying to get a new rule into place, which could be problematic.
Monica Trauzzi: So what's the potential reasoning behind the court's decision this week?
Larry Liebesman: Well the way I read it is that, you know, the environmental groups that were involved in the case and even industry did not support the government's motion to stay the briefing schedule. And so my read of it is that the Supreme Court saw the opposition to the motion, recognized that the issue presented has real effects, broad-based effects because it goes to the question of what actions can be reviewed in the court of appeals.
And so my feeling is that because of the potential implications of review and the opposition that they felt they really needed to address the jurisdictional issue up front; it could have implications down the road. And so my read is they weren't going to buy the Trump administration's approach of considering to put this all on hold, sweeping it under the rug essentially until they come out with a new rulemaking.
Monica Trauzzi: In terms of time line, how could the court proceedings intersect with what the administration is doing on the rule revising potentially —
Larry Liebesman: Well that's a very interesting question because the court proceedings, meaning going ahead on the jurisdictional issue, could be resolved by the end of the year. If the Supreme Court were to rule that the 6th Circuit didn't have jurisdiction, and I personally believe that they didn't — my read of the law in Section 509 is that jurisdiction should be in the district court — that could have a real impact on how the rulemaking process is going under the Trump administration.
They've said that under the executive order, we're directing EPA and the court to reconsider the rule with a focus on interpreting of navigable waters in line with Justice Scalia's interpretation of the law. And that's somewhat is very problematic because the majority of the courts have not adopted the Scalia perennial flow interpretation as the controlling ruling. They've gone with the Kennedy significant nexus test or both.
So here the Trump administration is going to figure out how are we going to go through a rulemaking, and if they go down the road of the Scalia interpretation that could run into real conflicts. But just the big picture is that four years to get the Obama rule out. It's going to be difficult for the Trump administration to short-circuit it given the huge administrative record that was assembled, some 1,200 peer-review articles, over 300,000 pages of documents, to rush that through.
So if in effect the stay is lifted, that could mean that the Obama rule would go into effect while this rulemaking process was underway. And now the Trump administration could say well we want to take a remand of the rule and so they could try to do that, but that doesn't mean they can vacate it. The law is very clear that if an agency wants to take a remand of a regulation that doesn't mean that they can say we're going to vacate the old rule.
Monica Trauzzi: Right.
Larry Liebesman: And that would, any attempt to vacate it would be resisted. So there are a lot of moving pieces here that are very unclear —
Monica Trauzzi: Yeah.
Larry Liebesman: — as to how this is going to work out.
Monica Trauzzi: And it's potentially a pretty big blow to the Trump administration as it's trying to undo much of what the Obama administration did.
Larry Liebesman: It does. Right now they figured well, if the court were to grant our motion on staying things, they would have, you know, the luxury of time. They wouldn't have to worry about this rule that has been strongly objected to.
Monica Trauzzi: Right.
Larry Liebesman: So now they may not have that luxury.
Monica Trauzzi: How should the private sector be navigating the uncertainty that currently surrounds this rule?
Larry Liebesman: That's an excellent question because of all the uncertainty surrounding everything that's going on here. I would say that the private sector should right now consider the 2008 guidance, the pre-Obama rule guidance as the controlling approach. I mean if I were advising somebody about seeking a permit, going through the process and looking at this crazy landscape and what we're dealing with, I would say just go back to sort of the way things were done, applying the 2008 guidance that interpreted the Rapanos decision and using the 1986 regulation that's been in effect all this time and go through and get a jurisdictional determination, go through the permit process based upon that because it's just way too much uncertainty.
A lot of members of the private sector might say well, I'll come out better if there's a new Trump rule coming into effect. But who knows when that's going to happen.
Monica Trauzzi: Right.
Larry Liebesman: Who knows whether they'd be skating on thin ice waiting for that to happen down the road?
Monica Trauzzi: All right. Lots to look at.
Larry Liebesman: A tremendous amount to look at.
Monica Trauzzi: Yeah. Thank you so much for coming on the show. That was great.
Larry Liebesman: OK. Well, a pleasure to be here.
Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.
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