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 old regulations in place, and the notice of proposed rulemaking does not even try to explain why the old regulations are more consistent with section 101(b). The second rationale is only slightly less sketchy. In the most confusing possible scenario, the Sixth Circuit would lose jurisdiction over the challenges, the federal district court cases would not be consolidated, and those district court cases would lead to conflicting results, so that some parts of the country are working under the new regulations and others under the old ones. But that still means just two systems in place, and they really aren't very different. Whether that's more confusing than operating under the old regulations—which were widely, if somewhat unfairly, lambasted for being confusing—is a tricky question, and a question the notice does not even try to answer.

In short, the agencies' basic proposal is to repeal now and think and explain later; not once do they try to explain why the old regulations, which they would put back in force until they come up with a new approach, are worth readopting. To put it kindly, that is a fairly novel approach to administrative law. It also is an impossible approach to reconcile with the basic administrative law principles that agencies must offer reasonable explanations for the legal rules they adopt.

Later on, the notice offers a few more gems. It claims that this change "will not have a significant economic impact on a substantial number of small entities." I think that might actually be true, but it's completely inconsistent with the overheated rhetoric previously coming from the Clean Water Rule's opponents, who argued, in then-Speaker John Boehner's fairly typical words, that the Clean Water Rule would "place[] landowners, small businesses, farmers, and manufacturers on the road to a regulatory and economic hell." In their defense, the agencies might try to say that the lack of impact arises because the rule is already stayed, but it's hard to reconcile that claim with their argument that the repeal is necessary largely because the stay might be lifted.  

Next comes the claim that "[t]his action does not have federalism implications." So much, then, for the other justification of the rule: if the other key purpose of this repeal is to think about the federalism implications of Clean Water Act jurisdiction, how can the repeal be completely lacking in federalism implications? Either these claims are false, or the stated justifications are smokescreens (or both).

For months, this administration has suggested, in its rhetoric, that it had little respect for the rules of administrative law. Tuesday's action suggests, probably to the surprise of no one, that the rhetoric wasn't just bluster.

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Dave Owen is a Professor of Law at the University of California, Hastings, College of the Law.

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