On Tuesday, President Trump issued another executive order on the environment, this time directing EPA to revisit the EPA rule defining Waters of the United States under the Clean Water Act. It’s a curious order, for a number of reasons.
First, Section 1 of the EO states as “Policy” that “minimizing regulatory uncertainty” is in the national interest. Well, the purpose of the WOTUS rule was pretty much to reduce the regulatory uncertainty surrounding the definition of WOTUS. The rule may not have succeeded perfectly, but does anyone really think that the purpose of the order is to reduce uncertainty? It’s pretty clearly intended simply to reduce jurisdiction.
Second, in revisiting the definition of WOTUS, the EO states that EPA:
Shall consider interpreting the term “navigable waters,” as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States.
I do love that “shall consider” language. Raise your hand if you think that EPA will consider, but then reject, relying on Scalia’s approach. More to the point, anyone reading this blog probably already knows that Scalia’s opinion did not command a majority of the court in 2006. Moreover, even with Justice Gorsuch rather than Justice Garland, I don’t think it would command a majority of the court today.
The point of the rule, in addition to reducing uncertainty, was to make the definition of WOTUS consistent with Justice Kennedy’s concurrence in Rapanos, which most people still think, I believe, did command a majority of the Court.
One may fairly assume that the NGOs and states that supported the rule – or actually wanted something broader – aren’t going to give up the fight easily, and I still think that they have the better legal position.
Maybe this is part of the over-arching “jobs” agenda. Before the clarifying WOTUS rule, consultants (like me) and lawyers often spent tens of thousands of client money per project on jurisdictional science and advocacy that smaller project budgets could ill afford. Make America Great Again!!