In our Spring and Fall 2015 Newsletters, we predicted a growing morass of litigation challenging the EPA and Army Corps’ Clean Water Rule (the “Rule”). The Rule sought to codify the criteria the agencies have applied on a case-by-case basis using the three alternative tests announced by the Supreme Court of the United States (“SCOTUS”) in Rapanos v. United States, 547 U.S. 715 (2006) to define the jurisdictional scope of Waters of the United States (“WOTUS”) under the Clean Water Act. As we predicted, industry groups, 30 states and environmental groups challenged the extension of EPA jurisdiction in federal district and appellate courts. The U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the Rule, and later agreed with the federal government that the Rule was reviewable exclusively in the circuit courts of appeal. The SCOTUS agreed to resolve the jurisdictional fights over which federal court should hear challenges to the Rule. Thus, the Sixth Circuit stayed the litigation over the merits of the WOTUS Rule until the SCOTUS decides the narrow jurisdictional question of which courts have jurisdiction to hear substantive challenges to the Rule. SCOTUS arguments are scheduled for April with an expected June decision. On April 3, 2017, SCOTUS denied POTUS’ request to stay hearing on the venue for the WOTUS review.
During the campaign, Donald Trump pledged to “eliminate the unconstitutional” Rule and to “direct the Army Corps of Engineers and EPA to no longer use this unlawful rule and related guidance documents in making jurisdictional determinations.” The SCOTUS grant of review gave the POTUS time to decide how to eliminate the Rule. On February 28, 2017, the POTUS decried the Rule as a “massive power grab” and signed an Executive Order to direct EPA Administrator Pruitt to begin the legal process to dismantle the Rule and to Attorney General Sessions to ask the court to delay a decision until a new regulation is released. The process for withdrawing the Rule is lengthy, will require justification, be subject to public comment, and potential challenge in new lawsuits which may end up in the SCOTUS, that will include the POTUS’ newly appointed justice, Neil Gorsuch. The Republican Congress could also scuttle the Rule legislatively. (A non-binding resolution was introduced in the House of Representatives that supports the Executive Order.) Congress could also defund EPA wetlands activities.
The Pruitt EPA will likely be less aggressive in enforcing Clean Water Act violations. Massachusetts may not be as affected because it has a strong Wetlands Protection Act and many municipalities have Home Rule Wetlands Protection laws.
Until SCOTUS addresses the new Rule years from now, EPA and the Corps presumably will make WOTUS determinations using the Rapanos tests. A Corps’ Jurisdictional Determination will in turn be subject to judicial review as “final agency action” under the SCOTUS decision in U.S. Army Corps of Engineers v. Hawkes Co., Inc., 101 S. Ct. 1807 (2016). Lawyers for industry, public interests, conservationists and environmental organizations will be fully employed for the next decade.