On Tuesday afternoon, President Donald Trump took the first step towards fulfilling a promise from his campaign: relieve the unnecessary regulatory burden on American industry by reversing Obama administration environmental rules.
One rule Trump was particularly concerned with was the Clean Water Rule, the Obama administration’s attempt at clarifying federal authority under the Clean Water Act. Throughout the campaign, Trump called the Obama Clean Water Rule — also known as the Waters of the United States rule, or WOTUS — “unlawful” and “extreme,” and promised to put an end to the rule altogether.
On Tuesday, surrounded by Republican lawmakers and EPA Administrator Scott Pruitt, Trump signed an executive order taking aim at the Clean Water Rule.
“This one is important,” Trump said. “How big is this one?”
“Huge, huge,” several lawmakers responded.
JUST IN: President Trump signs an executive order repealing Obama-era waterway protection rule https://t.co/lFOD8FZZuE
— NBC News (@NBCNews) February 28, 2017
But Trump’s executive order does not, in and of itself, eliminate the Waters of the United States rule. Trump can’t do that unilaterally, because the rule was finalized in 2015. Instead, all he can do is instruct the Environmental Protection Agency and the Army Corps of Engineers, the two agencies responsible for promulgating the rule, to “review and reconsider” it— a directive that will likely set off years of legal challenges and regulatory uncertainty.
“An Executive Order may give the illusion they’re fulfilling a campaign promise to gut the EPA, but it doesn’t ‘trump’ a rule,” former EPA administrator Gina McCarthy, under whose tenure the Clean Water Rule was released, said in a statement on Tuesday. “Only a new rule based on a new record can make current rules go away. The only thing these orders do is make clear this Administration will defer needed public health protections for the American people for the sake of partisan politics.”
Trump admin starts attacking environmental regs in earnest today. A source sent me full text of the EO. Screenshots for the wonks: pic.twitter.com/NkCGjKMSUj
— Jonathan Swan (@jonathanvswan) February 28, 2017
What Trump’s executive order will likely accomplish is the renewal of a rule-making process that could drag on for more than a year. Any rewrite or rollback of the regulation would have to adhere to the Administrative Procedure Act, which would require the administration to compile scientific evidence disputing the Obama administration’s interpretation of the rule.
“The science on which the rule is based went on so many layers of peer review, including the scientific advisory board,” Pat Parenteau, professor at the Vermont Law School, told ThinkProgress. “The administrative record that Trump and Pruitt are going to have to compile to support this decision is going to fly in the face of what is a very considerable body of science. I have no idea how they are going to begin to try to contest that.”
It would also open the rule-making process to periods of public comment, which, given the controversial nature of the rule, would likely trigger an onslaught of public outcry from groups opposed to rolling it back and, perhaps, criticism from powerful industry actors if the revised rule does not go far enough to limit the EPA and Army Corps’ regulatory powers. Regardless, it’s almost certain that any revised rule will face challenges in court — challenges that, depending on how the revised rule is written, could eventually reach the Supreme Court.
“Trump’s order will be vigorously challenged in the courts and in the court of public opinion,” Gary Wockner, director of Save The Poudre and Save The Colorado, told ThinkProgress. “The American people want clean and healthy rivers and waterways. Clean water polls extremely highly — environmental groups that I represent will vigorously challenge this order and we feel very strongly that the American people support clean and healthy rivers and waterways.”
Clean water does, in fact, poll extremely well with the American public — a Gallup poll from 2009 found that water pollution was Americans’ primary environmental concern, more pressing than air pollution, species loss, and climate change. But opposition to the Clean Water Rule has been fierce, spearheaded by powerful interests like the agriculture industry, the fossil fuel industry, manufacturers, and real estate developers. Opponents argue that the Clean Water Rule is essentially a federal land-grab, aimed at regulating private property across the country. The American Farm Bureau has been especially outspoken against the rule, arguing that it would require farmers to obtain permits to use chemicals near ditches and streams on land that are filled with water only seasonally.
Proponents of the rule, however, argue that it was created to lend certainty to a question that has plagued water regulations for decades: what did the creators of the Clean Water Act mean when they gave the federal government leeway to regulate “navigable waters?” In the 2006 Supreme Court decision Rapanos v. the United States, the Supreme Court split 4–1–4 on that very question, with the court’s four most conservative judges arguing that the definition of navigable waters should apply very narrowly.
“The science on which the rule is based went on so many layers of peer review.”
But Justice Kennedy, the sole justice to not join with either the conservative or liberal judges, suggested that the scope of the Clean Water Act could apply more broadly — to a wetland or some other non-navigable body of water — if that body of water had a “significant nexus” with a navigable body.
The Obama administration drafted the Clean Water Rule to pass Kennedy’s “significant nexus” test, a benchmark that has been used by lower courts to determine whether EPA regulations are legal under the Clean Water Act. But the Trump administration appears interested in constricting the authority of the EPA under the Clean Water Act much more than in previous administrations. In Trump’s executive order issued on Tuesday, for instance, the president directs the EPA and Army Corps to define “navigable waters” not by Kennedy’s “significant nexus” test, but by the opinion issued by Justice Antonin Scalia in 2006. In Scalia’s view, “navigable waters” mean waters that can be navigated for the purpose of interstate commerce and wetlands “with a continuous surface connection” to such navigable waters.
Adhering to Scalia’s opinion would certainly limit the regulatory power of the EPA and Army Corps — something in line with Trump’s general anti-regulatory stance — but it could mean problems for the administration when the rule is likely challenged in court.
In five district court decisions, only one court has ever ruled that either Scalia’s test or Kennedy’s test could be used to decide whether the EPA was overstepping its regulatory authority. Most courts have decided that regulations must meet Kennedy’s test; none have ruled that a regulation should meet only Scalia’s test. And if a challenge to Trump’s water rule were to make it all the way to the Supreme Court, and Kennedy were still on the bench, the Trump administration would face an uphill battle convincing Kennedy that Scalia’s test — which Kennedy opposed forcefully in 2006 — should be the law of the land.
“Trump’s order will be vigorously challenged in the courts and in the court of public opinion.”
But those legal challenges can’t begin until the Trump administration has replaced the rule. And since Trump has ordered the EPA to stop defending the current Clean Water Rule in court — it’s currently under a nationwide stay issued by the 6th Circuit pending further litigation — that means anyone looking to comply with regulations under the Clean Water Act will have to operate under significant regulatory uncertainty for at least a few years while a new rule makes its way through the official rule making process.
“We are going to be back to case-by-case litigation,” Parentaeu said, the very same kind of case-by-case litigation that caused the Obama administration to attempt to clarify the Clean Water Rule in the first place.
And while industry stakeholders complained of the regulatory overreach of the Clean Water Rule, it’s unclear whether the regulatory uncertainty and patchwork of case-by-case lawsuits that will be brought about by Trump’s executive order will be any better for business, Parentaeu said.
“Banks don’t like uncertainty,” he said. “If someone wants to put in a big shopping center in Tucson, and you’re unsure whether you’d need a federal permit or not — I would think someone along the line is going to start saying you’re putting a lot of capital at risk.”