Originally published by Walter James.
On February 28, 2017, the White House issued the Executive Order requiring a review of the “Waters of the United States” rule. The policy reasons, as set out in the EO, were to “ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” The EO directs the USEPA and the Corps of Engineers to, among other things, review the current WOTUS rule “for consistency” with the policy reasons set forth in the EO and to include a review of “all orders, rules, regulations, guidelines, or policies implementing or enforcing” the WOTUS rule. The EO also seeming directs the agencies to “publish for notice and comment a proposed rule rescinding or revising the rule . . ..” The EO finally directs that the agencies propose a new rule defining “navigable waters” with an interpretation “consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).”
My initial reactions to the EO are as follows: 1) The policy reasons listed in the EO do not reference, in any respect, human health, safety or the environment (it should have); 2) Congress enacted the law to protect the navigable waters under the guise of interstate commerce, States do not regulate interstate commerce (what does “showing due regard for the roles of the . . . the States” mean); and 3) the EO seems to presuppose that the “review” of the WOTUS rule will automatically result in it being rescinded.
The USEPA and the Corps of Engineers enforce the provisions of the Clean Water Act (setting aside delegated programs for a moment). The States do not enforce interstate commerce nor can the States regulate interstate commerce. So, other than the enforcement under a federally delegated program, what is the “due regard” that the agencies should show “the States.” Also, what if, after the review, the agencies say: Well we looked at the rule and the rule ensures that the navigable waters are free of pollution, helps promote economic growth, minimizes regulatory uncertainty and shows due regard for the role of Congress and the Constitution and the Supreme Court’s Rapanos opinion, so we will leave it in place? Okay, that will probably not happen, but it could. And does the change of regulations, as well as the interpretations, actually foster regulatory uncertainty?
Time will tell. The regulated community likes stability and assurances that what is in place yesterday will be in place today and will be in place tomorrow. Economic decisions (environmental compliance decisions) are typically based on the assurances of a stable regulatory/administrative regime, no matter how onerous it may or may not be; volatility is sometimes good, and sometimes not so good; stability is sometimes good, although change is inevitable.
Just remember, even though, in all likelihood there will be a role back of the WOTUS rule, that does not mean less enforcement. Historically, the enforcement actions by the USEPA go up during a Republican administration. Why, you might ask? Because it is a law enforcement function and the Republicans pride themselves on being the law enforcement party.
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