Clarity for the Clean Water Act

By Bruce Berwick and Larry Liebesman

 The U.S. Supreme Court hears oral arguments Wednesday on proper federal court review of a dramatic overreach of federal environmental permitting. The issue in question involves the Environmental Protection Agency’s (EPA) 2015 decision to expand dramatically the regulatory definition of “waters of the U.S.” in the 1972 Clean Water Act. The EPA’s decision significantly expanded federal involvement over the geographic reach of environmental permitting and threw the federal permitting process into profound uncertainty. The EPA’s rule preparation took four years, but the response to its 2015 announcement was swift. Thirty-one states and multiple business groups filed or joined litigation to overturn the rule. In October 2015, the 6th U.S. Circuit Court of Appeals issued a nationwide stay on the new rule, meaning that it has not gone into effect. Most recently, the Trump administration has proposed to rescind the rule and intends to issue a much more restrictive rule in the future. The Supreme Court will consider whether the 6th Circuit even has jurisdiction to review the EPA’s rule based on rather arcane language in the Clean Water Act. A decision from the high court concluding that the 6th Circuit does not have jurisdiction could significantly complicate the Trump administration’s efforts to accelerate permitting for energy and infrastructure projects by reopening pending suits in a number of federal trial courts, possibly leading to inconsistent interpretations of Clean Water Act jurisdiction. There are many disturbing aspects of the EPA’s 2015 rule. An important point involves how the EPA was highly dismissive of expertise provided by the Army Corps of Engineers. In a series of memos drafted prior to the EPA’s 2015 announcement, the Corps went on record as disagreeing strongly with EPA’s interpretations, and even the EPA’s basic data, which the Corps did not have a chance to review and analyze...more