Clean Water Rule

Former Obama EPA counsel Shenkman talks WOTUS repeal

This week, the Trump administration released a proposed rule that would repeal the Clean Water Rule, known as WOTUS. What are the next steps that this proposal triggers, and how is the legal landscape for the rule shaping up? During today's OnPoint, Ethan Shenkman — a partner at Arnold & Porter, the former deputy general counsel at U.S. EPA and, prior to that, deputy assistant attorney general at the Department of Justice's Environment and Natural Resources Division — explains how EPA might handle a new rule and what the repeal means for the business community.


Monica Trauzzi: Hello and welcome to OnPoint. I'm Monica Trauzzi. With me today is Ethan Shenkman, a partner at Arnold & Porter and the former deputy general counsel at U.S. EPA, prior to that, deputy assistant attorney general at the Department of Justice's Environment and Natural Resources Division. Ethan, it's great to have you here.

Ethan Shenkman: Thanks for having me.

Monica Trauzzi: Thank you. Thank you for coming on the show. So this week, the Trump administration released a proposed rule that would repeal the Clean Water Rule that we all call WOTUS. It's a move that was expected, but it now triggers next steps from both sides. What does the proposal do, and how does it fit into this bigger, broader push to do away with WOTUS completely?

Ethan Shenkman: Right. Well, the first thing that this proposal does is rescinds the Obama administration's Waters of the United States rule, which defined waters of the United States for purposes of the Clean Water Act. But interestingly, it doesn't just rescind it; it replaces it, and it replaces it with the rule that had existed for decades previously, and that actually was the rule that everybody had complained led to a lot of confusion and uncertainty. So in some sense, we're back to that world of some degree of uncertainty while the administration decides whether to take the next step of issuing its own new interpretation of the Clean Water Act.

Monica Trauzzi: So this essentially buys the administration some time. Is the expectation that there will be a new rule proposed?

Ethan Shenkman: Well, the proposal says that it's temporary, so that is what they're saying, but there's no requirement that they move on to Step 2. There's no time frame in which they have to do so, and so it will be interesting to see how quickly they can move. I think they're going to be interested in not only trying to get a new rule proposed, but also finalized and defended within the time period of this presidential term, and whether they can do that, we'll see.

Monica Trauzzi: That could be a heavy lift.

Ethan Shenkman: Yes.

Monica Trauzzi: So how does going back to the old rule change the playing field for the business community?

Ethan Shenkman: Well, you know, this takes us back to 2006 when the Supreme Court interpreted the Clean Water Act in the Rapanos decision and did it with a divided opinion, with Justice Scalia writing a plurality opinion, Justice Kennedy writing a concurrence and then four dissenters, so it was a 4-1-4 split decision, which left a lot of uncertainty about how that decision should be construed and applied. And then there was just a ton of litigation in the district courts and the courts of appeals and with the courts coming out in a variety of different ways. And by re-enacting the previous rule, we're back to that same situation where the lower courts will have to decide how to interpret and apply Rapanos, and interestingly, this proposal also said that the agencies will continue to apply a guidance that they put out in 2008 where the agencies gave their interpretation of Rapanos.

Monica Trauzzi: So we could potentially see a new definition come out of the Trump administration. Do we have any sense of what that could look like?

Ethan Shenkman: Well, President Trump issued an executive order earlier this year where he strongly suggested that the agencies should consider adopting Justice Scalia's test. That was one of the opinions that came out in Rapanos. But whether that would be — whether that's something that the agencies decide to do, whether they decide that that can be supportable by the science and by the record and whether they think that doing that would be defensible, because it will certainly be challenged, is another question. So we really don't know. They could go in many different directions. And they can also — they could do something that's comprehensive or they could decide to address certain subissues and just address those.

Monica Trauzzi: What's the legal landscape ahead? I imagine that it's not going to stop here.

Ethan Shenkman: No, certainly not. I mean, the first question is whether those who are supportive of the Obama administration's 2015 rule will challenge this proposal if it's finalized. And it'll be interesting to see whether they do and what their argument is. They may argue that the science that was put into the record to support that rule was so strong that there's no going back and that to go back to the previous rule is arbitrary and capricious. So even before we get to whether the administration will issue a new rule, there's potentially going to be litigation over this interim step.

Monica Trauzzi: And in its proposal, the administration, the Trump administration, focuses on the economics of the rule and it makes policy arguments against the Obama rule. What does the administration gain by doing this and not by engaging in a discussion on the technical document that the Obama administration had released?

Ethan Shenkman: Well, like you said, I think they — they're buying some time and they're attempting to sort of define the rules of the road that will apply during the interim. There's another twist to this, which is that the Supreme Court is going to decide a case in the fall that has to do with which courts have jurisdiction to decide challenges to these rules, whether those have to be filed in the courts of appeals in the first instance or whether they can be filed in the district court, and it's possible that, depending on how that Supreme Court case comes out, it could create even more jurisdictional uncertainty, and so I think the administration wanted to come out and at least have some clear rules of the road that will apply during this interim period.

Monica Trauzzi: It's a really interesting one to watch. We'll end it there. Thank you so much for your time. Thanks for coming on the show.

Ethan Shenkman: Thanks for having me.

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

[End of Audio]



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