Last week, EPA and the Army Corps issued a Supplemental Notice of Proposed Rulemaking in support of their efforts to get rid of the Obama WOTUS rule. It’s a shrewd but cynical document. It’s shrewd, because it fairly effectively shifts the focus from the scientific question to the legal question. Instead of asking what waters must be regulated to ensure that waters of the United States are protected,… More
Tag Archives: Army Corps of Engineers
The debate over the definition of “Waters of the United States” goes on and on. I tend to think that Kennedy’s “significant nexus” test was a reasonable approach to making sense of a vague statute. I also think that the Obama administration definitional rule was supported by good science.
What we sometimes lose track of in the ongoing debate is that the definition – whatever we choose – matters,… More
On June 14, 2017, the District Court for the District of Columbia issued a decision in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers. The Court found that the Army Corps of Engineers (“the Corps”) had not adequately considered several issues in its environmental assessment (“EA”) for the Dakota Access Pipeline, and that therefore the Corps’ decision-making was arbitrary and capricious.
After the Supreme Court decided last spring that Army Corps of Engineers’ Jurisdictional Determinations are final agency action subject to judicial review, I advised the Corps to pick up its marbles and go home. The statute does not require the Corps to issue JDs. To me, if the Corps is going to subject itself to litigation every time it issues a JD, it might as well just stop. … More
In a decision that was not a surprise based on oral argument, the Supreme Court today ruled that Army Corps of Engineers Jurisdictional Determinations concerning “waters of the United States” are final agency action subject to judicial review under the APA. As we previously noted, this continues the Court’s emphasis on the practical consequences of Corps decisions. Indeed, Chief Justice Roberts noted that the Court’s decision:
Tracks the ‘pragmatic’ approach we have long taken to finality.… More
While the litigation over the WOTUS rule wends its tortuous way through the courts, EPA and the Corps have not been idle. Earlier this month, they jointly issued a memorandum on their plans for improving the permitting process. Among other measures, they have reemphasized their commitment to transparency, by making all jurisdictional determinations available on a single web site. The web site is now up and running and includes all JDs issued beginning in September.… More
The Sixth Circuit Stays the Waters of the United States Rule: Just a Plain Vanilla Preliminary Injunction — Not!
Today, the Sixth Circuit Court of Appeals issued a nationwide stay against implementation of the “Waters of the United States” rule. The case is so weird, in so many ways, that I don’t even think I can count them. Here are a few.
- The Court stayed the case, even though, as the dissent pointed out, there is question whether it even has jurisdiction to hear the appeal.…
Anyone who reads this blog must have seen the explosion of reports in the trade press that EPA ignored significant criticism from the Army Corps of Engineers in promulgating its Waters of the United States rule. I have not seen the memoranda, but, based on the press reports, it appears that EPA ignored criticism both that it was too stringent in some areas and that it was not sufficiently stringent in others. … More
The Science Advisory Board has now provided its advice to EPA and the ACOE concerning their proposed rule clarifying the definition of “waters of the United States” under the Clean Water Act. In a brief letter that can only worry the National Farm Bureau and embolden those who thought that the EPA/ACOE proposal did not go far enough, the SAB concluded that:
the available science supports the conclusion that the types of water bodies identified as waters of the United States in the proposed rule exert strong influence on the physical,… More
Last week, I discussed EPA’s efforts to “muddle through” on climate change in the absence of comprehensive legislation. This week, I think it’s the Clean Water Act’s turn. If there were any regulatory situation which required some serious muddling through at the moment, interpretation of the Supreme Court’s Rapanos decision almost is a match for the current climate mess. As most of my readers know, Rapanos was a 4-1-4 decision which left EPA,… More
In Cool Hand Luke, Paul Newman is sentenced to two years on a chain gang for cutting the heads off of municipal parking meters. The Mingo Logan Coal Company wants to cut the top off of 3.5 square miles of West Virginia mountaintop. This week, EPA gave the company’s Spruce No. 1 Mine
proposal the death penalty, using its authority under § 404(c) of the Clean Water Act to veto a permit issued by the Army Corps of Engineers in 2007. … More
Two seemingly unrelated reports last week serve as a reminder that coal remains very much under siege. First, Earthjustice, on behalf of a number of environmental organizations, filed a petition with EPA under § 111 of the Clean Air Act requesting that EPA identify coal mines as an emissions source and, consequently, establish new source performance standards for coal mine emissions of methane and several other categories of pollutants.