Late last week, Judge William Alsup vacated the Trump-era EPA amendments to the regulations governing water quality certifications under section 401 of the Clean Water Act. EPA had requested remand, and made clear that it disagreed with the amendments promulgated in 2020, but it opposed vacatur.
Whatever one’s view of the merits of the 2020 rule, from the court’s perspective, faced with EPA’s current statements indicating substantial disagreement with significant elements of the 2020 rule, and the 9th Circuit’s case law strongly suggesting that vacatur is appropriate in similar contexts, it’s hard to disagree with Judge Alsup’s decision. I would not bet money on the likelihood that the appeal of Judge Alsup’s decision will succeed.
However, whatever one’s position may be on vacatur, the underlying question of how to make the 401 certification process work better remains relevant. And whatever one’s position may be on the 2020 rule, does anyone really think that the 401 process worked well under the 1971 rule that was restored by Judge Alsup’s ruling? I don’t agree with Andrew Wheeler on very many topics, but his description of the 401 rule as “trapping projects in a bureaucratic Groundhog Day” is hard to argue with.
In many respects, the 401 rule is similar to the fight over the NEPA regulations.
- Step 1 – We have a rule that doesn’t work, and which needlessly inhibits good projects as well as bad.
- Step 2 – The Trump administration amends the rule. The new rule combines a few good things with much that could rightly be criticized.
- Step 3 – Either the courts or the Biden administration, or both, throw out the bathwater and the baby.
Is there any hope for an acknowledgement that these processes really do need reform, and that reform is not just a code word for something nefarious? Even if these processes are not a bureaucratic Groundhog’s Day, they are absolutely subject to abuse by those who oppose projects for reasons that are grounded more in private interest than in public interest.
If we’re going to site needed projects to advance a clean economy for the 21st Century, we’re going to have to make these processes work better. That means protecting the environment, ensuring environmental justice, and, yes, removing obstacles to the development of worthy projects.