Yesterday, Judge Rosemary Marquez vacated the Navigable Waters Protection Rule, the misnomer also known as the Trump WOTUS rule. In response to this citizens’ suit challenging NWPR, the Biden EPA and Army Corps of Engineers moved to remand the rule to the agencies, since they had already announced an intent to revisit the definition of WOTUS. However, for reasons that I have never understood, the agencies sought remand without vacatur, notwithstanding their public statements to the effect that implementation of NWPR was already causing harm to waters of the United States.
It turns out that Judge Marquez shares my bewilderment, because it did not take her long to conclude that this case did not fit the criteria for remand without vacatur.
The seriousness of the Agencies’ errors in enacting the NWPR, the likelihood that the Agencies will alter the NWPR’s definition of “waters of the United States,” and the possibility of serious environmental harm if the NWPR remains in place upon remand, all weigh in favor of remand with vacatur.
So NWPR is out. The next question is “what now”?
The plaintiffs here also challenged the Trump rule that repealed the 2015 Obama WOTUS rule. If I were a betting man, I’d put my money on Judge Marquez also striking down the repeal rule. That would revive the Obama WOTUS rule – except that there several legal challenges were filed against the Obama rule.
Oh, what a tangled web the agencies weave when they practice to regulate under an ill-defined statute and a fractured Supreme Court opinion. I do not see the web getting any less tangled any time in the near future.