EPA Proposes A Section 401 “Improvement Rule” — Now That’s a Low Bar

Last week, EPA released its proposed “Clean Water Act Section 401 Water Quality Certification Improvement Rule”.  The proposed rule would make a number of significant changes to the rule promulgated by EPA in 2020.

I’m going to focus on one in particular, because it could be a good test of just how far the current Supreme Court is willing to go to limit the authority of the executive branch.

In 2020, EPA limited the scope of state authority under § 401 to those effects directly related to the discharge that triggers review under § 401.  This reversed the approach taken by EPA over the prior 50 years, which was that, once a discharge triggers review under § 401, states may review the “activity as a whole”, meaning any impact related to water quality, even if not directly caused by the jurisdictional discharge.

As I noted previously, to do this, the Trump administration had relied on every ounce of flexibility provided by ChevronIndeed,  in 1994, the Supreme Court specifically blessed the “activity as a whole” approach in PUD No. 1 of Jefferson Cty. V. Washington DOE.  The seven-member majority concluded that

401(d) is most reasonably read as authorizing additional conditions and limitations on the activity as a whole once the threshold condition, the existence of a discharge, is satisfied.

Many conservatives don’t like the “activity as a whole” approach, for obvious reasons.  What makes the issue so interesting is that it poses three separate problems for those who would challenge it.

  • First, a challenge to the proposed rule would be at odds with the basic federalism that is embodied in § 401.
  • Second, SCOTUS has already declared that the “activity as a whole” approach is a reasonable interpretation of the statutory text. Thus, as long as Chevron lives, SCOTUS could only invalidate a new EPA rule by finding that seven justices got that wrong.
  • Third, even if SCOTUS were to overrule Chevron, that would only strengthen the prior holding in PUD No. 1.  Overturning Chevron would just put the decision directly in the hands of the courts — and SCOTUS has already told the world the the “activity as a whole” approach is the “most reasonable” interpretation of the statute.  To overrule PUD No. 1 would basically be a declaration of war on the notion that any precedent is binding.

And yet, I would not bet on the rule surviving judicial review.  Perhaps this issue will tell us whether the SCOTUS really wants to dismantle the administrative state.

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