Implications of the Supreme Court's Clean Water Rule/WOTUS Ruling

by Dave Owen | January 22, 2018

Originally published on Environmental Law Prof Blog.

Today, the United States Supreme Court decided National Association of Manufacturers v. Department of Defense, a case determining whether challenges to the "Clean Water Rule" or "Waters of the United States Rule" should be heard in federal district court or in the United States Court of Appeals for the Sixth Circuit. The answer, the Supreme Court unanimously held, is federal district court, and the Court remanded the case to the Sixth Circuit to dismiss the appellate court petitions.

This post provides brief answers to a few likely questions about the decision.

Was this a surprising outcome? It was not. Many legal observers expected the Court to reverse the Sixth Circuit. Indeed, the two Sixth Circuit judges who concluded that they did have jurisdiction were rather unenthusiastic about their holding and blamed it primarily on precedent. The government's arguments were grounded primarily in judicial and administrative convenience rather than statutory text, which, in this textualist era, is a pretty good recipe for a 9-0 loss.

What are the immediate effects? Before reaching its jurisdictional holding, the Sixth Circuit had issued a nationwide stay on implementation of the rule. That stay now must dissolve; a court cannot sustain an injunction in a case in which it lacks jurisdiction. That means the Clean Water Rule will now go into effect in those areas where it has not been stayed by ...

Turning Power Over to States Won't Improve Protection for Endangered Species

by Alejandro Camacho | January 11, 2018
Professor Michael Robinson-Dorn of the University of California, Irvine co-authored this article with Center for Progressive Reform Member Scholar and University of California, Irvine Professor Alejandro Camacho. It originally appeared in The Conversation on January 11, 2018. Since the Endangered Species Act became law in 1973, the U.S. government has played a critical role in protecting endangered and threatened species. But while the law is overwhelmingly popular with the American public, critics in Congress are proposing to significantly reduce federal ...

FERC Rejection of Coal Subsidies Proposal Demonstrates Importance of Independent Agencies

by James Goodwin | January 09, 2018
On January 8, the Federal Energy Regulatory Commission (FERC) struck a resounding blow against the Trump administration's ill-advised agenda to put its thumb on the scale of the energy market by propping up the coal industry, unanimously rejecting a controversial proposal by Department of Energy (DOE) Secretary Rick Perry. Perry's plan would have resulted in working families and small businesses subsidizing the coal industry to the tune of hundreds of millions or even billions of dollars. Dozens of energy policy ...

A Final 2017 Dose of Op-Eds

by Matthew Freeman | December 28, 2017
CPR’s Member Scholars and staff rounded out a prolific year of op-ed writing with pieces covering several topics, touching on the Endangered Species Act, the scuttling of criminal justice reform, saving the Chesapeake Bay, the Administration’s efforts to unravel the Clean Power Plan, and the tax bill President Trump signed into law last week. You can read all 46 of this year's op-eds here, but here’s a brief roundup of the latest: In an October 29, 2017, piece in The Hill, Bill ...

Steinzor: Trump's reform won't stop mass incarceration

by Matthew Freeman | December 21, 2017
"Despite the most extensive bipartisan support in many years for the reform of mass incarceration in the United States, the Trump administration has ignored this enormous problem and focuses solely on greater leniency for white collar criminals." So writes CPR’s Rena Steinzor in her latest op-ed in The Hill. She goes on to describe the circumstances under which the Department of Justice abandoned its prosecution of HSBC, and with it a deferred prosecution agreement that would have settled a “massive criminal ...

Trump Speech on Deregulation, Fall Unified Agenda Continue Dangerous Assault on Our Safeguards

by James Goodwin | December 15, 2017
This post was originally released as a press statement on December 14 in response to President Donald Trump's speech on deregulation and his administration's Fall 2017 Unified Agenda. Starting on Day One, the Trump administration has perpetrated an all-out assault on essential public safeguards for health, safety, the environment, and American families' financial security, and today, the president took the time to revel in all the damage he has overseen. The administration's anti-safeguard agenda for the coming year promises more ...

Looking Back on Lucas

by Daniel Farber | December 11, 2017
Lucas v. South Carolina Coastal Commission was the high-water mark of the Supreme Court's expansion of the takings clause, which makes it unconstitutional for the government to take private property without compensation. Lucas epitomized the late Justice Scalia's crusade to limit government regulation of property. The decision left environmentalists and regulators quaking in their boots, especially because of its possible impact on protection for wetlands and habitat for endangered species. Ultimately, however, Scalia failed to make a compelling case for ...

An Antidote to Greed

by Matthew Freeman | November 28, 2017
If there's a defining value to the tax bill now working its way through Congress, it's greed. How else to account for a bill that wipes out tax deductions for health care expenses, double-taxes the money you pay in state and local income taxes, eliminates the deduction for interest on student loans, and at the same time eliminates the tax that's now paid on estates in excess of $5.5 million, eliminates the alternative minimum tax, and slashes corporate taxes, all ...

CPR Member Scholar Hammond Brings a Real EPA 'Back to Basics' Lesson to Senate

by James Goodwin | November 14, 2017
Today, CPR Member Scholar Emily Hammond is testifying at a Senate subcommittee hearing that will examine four bills that amount to "rifle shot" attacks on the Clean Air Act's public health and environmental protections. Hammond's testimony before the Subcommittee on Clean Air and Nuclear Safety of the Senate Environment and Public Works Committee casts in powerful terms what is at stake with these bills, highlighting how they contribute to the Trump administration's own assault on public safeguards. She also explains ...

Is EPA Administrator Scott Pruitt Focused on Getting 'Back to Basics' or Slashing and Burning Our Environmental Protections?

by Brian Gumm | November 06, 2017
In an article just published in the Environmental Law Institute's Environmental Law Reporter, former Environmental Protection Agency (EPA) official Bob Sussman examines the tenure of Administrator Scott Pruitt thus far. I recently talked with Mr. Sussman about Pruitt's so-called "back to basics" approach at EPA, the rollbacks of environmental protections he has overseen so far, and Pruitt's numerous favors for special interests.  EPA Administrator Scott Pruitt has made a big deal out of his "back to basics" mantra at the ...

Questions for Scott Mugno, Trump's Pick to Lead OSHA

by Katie Tracy | November 02, 2017
Scott Mugno, Vice President for Safety, Sustainability, and Vehicle Maintenance at Fed Ex Ground in Pittsburgh, Pennsylvania, is President Trump's pick to head the Occupational Safety and Health Administration (OSHA). Although whispers of Mugno's possible nomination had spread across Washington, D.C., over the past several months, not much has been said about his credentials for the job. One major concern is Mugno's connection to the notoriously anti-regulatory U.S. Chamber of Commerce, for which he is currently the chairman of the ...

At House Oversight Hearing, A Call for Trump to Abandon the Pillars of His Assault on Safeguards

by James Goodwin | October 24, 2017
Today, I will testify before two subcommittees of the House Oversight Committee at a hearing that I hope will provide a critical examination of the Trump administration's so-called "Regulatory Reform Task Forces." Created by Trump's Executive Order 13777, these task forces are essentially designed to be "hit squads" embedded at each agency with the goal of carrying out the Trump administration's assault on public safeguards from within. In my testimony, I provide a comprehensive critique of the task forces, as ...

The Flood of Takings Cases after Hurricane Harvey

by John Echeverria | October 23, 2017
On August 27, as Hurricane Harvey blew through the Houston area, the U.S. Army Corps of Engineers found itself between the proverbial rock and hard place. Since the 1940s, it had operated a flood control project to control the risk of flood damage to downtown Houston and the Houston Ship Channel. It had accomplished this by carefully controlling the release of flood waters from the project's dams. Now, however, the Corps confronted Hurricane Harvey, a megastorm generating massive, unprecedented volumes ...

CPR's Latest Op-Eds Take on the Assault on Our Safeguards

by Matthew Freeman | October 16, 2017
CPR's Member Scholars and staff have continued to appear in the nation's op-ed pages to expose the ongoing assault on our safeguards by President Trump and Congress. Among recent examples: Dan Farber's July 5 article in The Hill highlighted the many flaws in legislation introduced by Sens. Rob Portman (R-OH) and Heidi Heitkamp (D-ND) designed to encumber the development of regulatory safeguards. In "Tangling life-saving regulations in red tape," Farber writes, "[T]he bill would impose needlessly complex procedures that will ...

Senate Briefing Highlights Need for Strong Federal Role in Protecting Endangered Species

by Alejandro Camacho | October 03, 2017
On September 28, I joined senators and Senate staff for a Capitol Hill briefing hosted by Sen. Tammy Duckworth. Our discussion focused on the report I co-authored with my colleagues at the Center for Land, Environment, and Natural Resources, entitled Conservation Limited: Assessing State Laws and Resources for Endangered Species Protection, which investigates states' capacity to protect and recover endangered species by looking at how these laws compare to the federal Endangered Species Act (ESA). It also looks at state and ...

Trump to America's Most Vulnerable Communities: You're on Your Own

by James Goodwin | September 28, 2017
UPDATE: President Trump is no longer scheduled to speak on deregulation on October 2, but the planned deregulatory "summit" with various cabinet-level agencies is still slated to occur. Government-sanctioned cruelty makes for shocking images, as the events of the past few weeks demonstrate. People in wheelchairs forcibly dragged from congressional hearing rooms for protesting legislative attempts to strip them of access to affordable health care. The uncertainty on the faces of Puerto Rican parents as they survey the damage to ...

At House Judiciary Hearing, CPR's Steinzor to Call for Repeal of Congressional Review Act

by James Goodwin | September 27, 2017
Tomorrow, CPR Member Scholar Rena Steinzor is scheduled to appear before the Subcommittee on Regulatory Reform, Commercial and Antitrust Law of the House Judiciary Committee to testify at a hearing focused on the Congressional Review Act (CRA). The CRA is a controversial law that has been aggressively used this past year by the majority in Congress and the Trump administration to repeal 14 regulatory safeguards that would have protected consumers, workers, and our environment. In her testimony, Steinzor makes the ...

CPR Scholars to EPA, Army Corps: Scrapping the Clean Water Rule is Unlawful, Unwise

by Dave Owen | September 26, 2017
On September 25, a group of Member Scholars from the Center for Progressive Reform (CPR) submitted comments on the Trump administration's proposed rollback of the "waters of the United States" rule (technically, the rollback rule has been issued by EPA and the U.S. Army Corps of Engineers, but its support within those agencies comes only from the Trump administration's political appointees). The proposed rule addresses the scope of federal jurisdiction under the Clean Water Act – which means, in non-legal terms, ...

Regulatory Policy

When it comes to health, safety and the environment, executive branch enforcement of the law has become yet another arena to fight and re-fight policy battles presumably settled in Congress. In particular, regulated entities, including companies that pollute or  make potentially dangerous products, spend millions working to block, delay, and unravel such protections.

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