waterdrop_wide.jpg
March 7, 2016 by Dave Owen

Clean Water Act Jurisdiction and the Changing Supreme Court

Since Justice Scalia’s passing, the blogosphere has been abuzz with speculation about how the changed composition of the Court will affect environmental law. This post adds a little more to that speculation. My focus is not the Clean Power Plan litigation, which has (justifiably) gathered much of the attention, but instead the litigation over the joint EPA-Army Corps Clean Water Rule. And my prediction is a bit different from most predictions about the Clean Power Plan. Here, I predict, that changes in court composition probably won’t matter much.

Before I explain the reasons for that prediction, a little context may be helpful. The Clean Water Rule (also sometimes referred to as the Waters of the United States Rule (or just WOTUS)) determines the geographic scope of federal jurisdiction under the Clean Water Act. The Army Corps and EPA jointly released the rule last summer. Its most controversial provisions retain, with minor adjustments, existing jurisdictional practices for small-ish wetlands and streams. Most of the rule’s opponents (a combination of states and regulated industries) were hoping for narrower jurisdiction, and they filed many lawsuits challenging the rule. Some environmental groups, while generally supportive of the rule, objected to a …

Oct. 14, 2015 by Dave Owen
wetland2_wide.jpg

Last week, the United States Court of Appeals for the Sixth Circuit issued a nationwide stay of implementation of the new Army Corps/EPA Clean Water Rule.  This sounds like a very big deal, and the state plaintiffs who won the stay will no doubt describe this as a major victory.  Those proclamations will conceal, however, a few layers of complexity and irony.

The legal basis for the ruling is an administrative law principle known as the logical outgrowth rule.  Under this principle, a final rule can be different from a proposed rule, but it still must be a logical outgrowth of that proposed rule; it cannot be something completely new.  That principle flows from the basic Administrative Procedure Act requirement for notice and an opportunity to comment.  Neither is present when an agency’s final rule does something no one reasonably could have expected, and upon …

CPR HOMEPAGE
More on CPR's Work & Scholars.
June 16, 2021

Waters of the United States, 2021/2022 Edition, Part I

June 16, 2021

Waters of the United States, 2021/2022 Edition, Part II

May 3, 2021

Maryland Must Take Stronger Steps to Regulate Toxic Stormwater from Industrial Sites to Protect Marylanders and their Waterways

Jan. 12, 2021

Study Finds Significant Flaws with Trump Waters of the United States Rule, Provides Legal Support for Biden Replacement

Sept. 24, 2020

Citizen Suits Are Good for the Regulatory System, and We Need More of Them

July 29, 2020

Who Could Possibly Have Guessed?

June 2, 2020

Clean Water Webinar Spotlight: Lessons Learned from the Supreme Court's Maui Decision