Repeal First, Explain Later: The Trump Administration and the Clean Water Rule
by Dave Owen | June 28, 2017
Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen.
EPA and the Army Corps of Engineers just released a proposal to repeal the Clean Water Rule and to return to previous regulations. The Clean Water Rule (also known as the WOTUS Rule) would have clarified the scope of federal regulatory jurisdiction under the Clean Water Act. It was one of the Obama administration's signature environmental initiatives, and it was one of candidate and then President Trump's signature targets. So the emergence of this proposal is no surprise. Nevertheless, the contents of the new document are surprising in several ways.
First, I'm not sure I have ever seen a notice of proposed rulemaking that makes so little effort to justify the rule it adopts. EPA and the Corps seem to have offered two, and only two, justifications for switching from the newer regulations to the old ones:
- First, they want to think a little bit more about the implications of Clean Water Act section 101(b), which affirms the importance of state involvement in water quality protection;
- Second, they worry that keeping the new rule could cause confusion if, as I think is likely to happen, the Supreme Court rules that the Sixth Circuit Court of Appeals does not have jurisdiction over challenges to the old rule.
The first rationale isn't really a justification at all; one could do that thinking with the new or the
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