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 ...

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, ...

The Unclean Water Rule

by Evan Isaacson | July 13, 2017
This post builds from an interview with the author for WYPR's The Environment in Focus with Tom Pelton, a portion of which aired on Wednesday, July 12, 2017. One question I've been asked a number of times over the last several years is, "What does the Clean Water Rule mean for the Chesapeake Bay?" With EPA's recent proposal to repeal the rule, I'm once again hearing questions and speculation about what this repeal will mean for the Bay watershed. I ...

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 ...

Myths, Realities, and the Clean Water Rule Controversy

by Dave Owen | March 06, 2017
Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen. Last Tuesday, President Trump signed an executive order directing EPA and the Army Corps of Engineers to begin work on a new rule defining the scope of federal jurisdiction under the Clean Water Act. The rule, if and when it is finalized, would replace the "Clean Water Rule" released by EPA and the Corps during the summer of 2015. Much of the political rhetoric surrounding the Clean Water Rule has suggested ...

The Surprising Evolution of Federal Stream Protections

by Dave Owen | May 05, 2016
Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen. Right now, the United States' second-most-heated environmental controversy—behind only the Clean Power Plan—involves the Clean Water Rule, which seeks to clarify the scope of federal regulatory jurisdiction under the Clean Water Act. According to its many opponents, the rule is one big power grab. EPA and the Army Corps of Engineers, according to the standard rhetoric, are unfurling their regulatory tentacles across the landscape like some monstrous kraken, with ...

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