Scalia returns from the grave to pollute America’s water

A leaked draft of the Clean Water Rule rewrite circulating around Washington has Scalia’s legacy all over it.

CREDIT: AP Photo/Andrew Harnik
CREDIT: AP Photo/Andrew Harnik

On Tuesday, February 28, surrounded by Republican lawmakers, President Donald Trump signed an executive order instructing the Environmental Protection Agency and the Army Corps of Engineers to begin the process of rolling back the Obama administration’s Clean Water Rule.

That rule was finalized in 2015, so Trump couldn’t unilaterally undo it with the stroke of a pen. Instead, he asked the appropriate agencies to rewrite the rule and redefine “navigable waters” — a term that has plagued courts for decades — according to the definition put forth by the late Supreme Court Justice Antonin Scalia in 2006. And while that might seem like a small change, legal experts say that directive could vastly reduce the federal government’s ability to protect the nation’s streams, rivers, and wetlands from pollution.

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A draft of the Trump administration’s proposed rewrite of the rule obtained by ThinkProgress confirms it is indeed taking an extremely narrow position in its definition of “navigable waters,” by applying Scalia’s opinion almost word-for-word to the rule rewrite. The draft, which has been circulating throughout the EPA and Capitol Hill for weeks, defines waters of the United States to mean only waters that have been used for interstate or foreign commerce, or interstate waters and wetlands, and requires such waters to be “relatively permanent.”

That would break considerably from a different opinion, also offered in 2006, by Supreme Court Justice Anthony Kennedy, who argued that waters could fall under the jurisdiction of the Clean Water Act if they have a “significant nexus” to navigable waters.

“There is no way to quantify the impact except to say it would represent the most dramatic reduction in federal protection for streams, wetlands, ponds, lakes and other water bodies in the history of the Clean Water Act,” Pat Parenteau, a professor at the Vermont Law School, told ThinkProgress in an email, after reviewing the draft. “It has no basis in science, law, history or sensible water quality policy.”

Under the Clean Water Act, the federal government can regulate pollutants from “point sources” into “navigable waters,” though Congress did not explicitly define what constituted navigable waters. That lack of definition has created a regulatory vacuum, especially in situations where it’s not clear whether a particular body of water is “navigable” in a literal sense — wetlands, seasonal streams and rivers, or tributaries. Courts have attempted to fill that gap through their own interpretation of the phrase, but a mishmash of rulings has left courts and the government without a universally agreed upon definition.

Instead, regulatory bodies and lower courts have relied on two opinions from a 2006 court case, Rapanos v. United States, which pitted a Michigan developer, John Rapanos, against the federal government. Years earlier, the government brought criminal charges against Rapanos, alleging that he had violated the Clean Water Act by dumping sand into wetlands without a permit. Rapanos was convicted, but appealed, arguing that the wetland was miles from anything that could be considered a “navigable waterway” under the Clean Water Act.

The case made it all the way to the Supreme Court, where a plurality of justices sided with Rapanos, denying the EPA’s interpretation of navigable waters as any waters that connect to traditionally navigable waters. That decision produced two opinions that have shaped water law and policy for almost a decade. Scalia’s interpretation, on one hand, relied on a dictionary definition of “waters” to define navigable waters as being relatively permanent waters, or having some kind of continuous surface connection to permanent waters.

Kennedy’s interpretation, on the other hand, defined waters under the jurisdiction of the Clean Water Act as waters that had a significant nexus to traditionally navigable waters. Kennedy also took issue with Scalia’s requirement that bodies of water be relatively permanent — under that definition, he argued, a number of rivers in the Western part of the country, which run dry for part of the year, would not qualify for federal protection under the Clean Water Act.

“It would represent the most dramatic reduction in federal protection for streams, wetlands, ponds, lakes, and other water bodies in the history of the Clean Water Act.”

Several legal experts told ThinkProgress that the leaked draft of the rules would constitute an unprecedented reduction in the scope of the Clean Water Act. In addition to codifying Scalia’s opinion that the Clean Water Act should only apply to permanent and continuous waters, the Trump administration’s rewrite of the rule also explicitly defines what counts as a tributary, something that was not spelled out in the Clean Water Rule. According to the draft rule, the Trump administration considers tributaries a continuously flowing body of water that has “relative permanence” — a fairly vague term that could open the rule up to legal challenges if it were finalized.

“If this rule were adopted, it would be an outrageous contraction of the scope of the Clean Water Act that is contrary to Congress’ clear intent, and this arbitrary reversal would never withstand review in court,” Karl Coplan, a professor at Pace Law School, told ThinkProgress.

But finalizing a rule based on Scalia’s interpretation in the Rapanos case could lead to legal trouble down the road for the administration. Lower courts have generally been split in their decisions about giving deference to Kennedy’s definition, or Kennedy and Scalia’s definition together. No court has upheld the Scalia opinion on its own — it’s always been taken in conjunction with the Kennedy test.

That means the Trump administration’s rewrite directly contradicts how the Court of Appeals has been interpreting the Rapanos decision, and throws into question how favorably the Court of Appeals would view the Trump administration’s rule if it were ever challenged in court. And if the challenge were to reach the Supreme Court while Kennedy was still on the bench, convincing a majority of justices to side with the administration’s rule would mean convincing Kennedy to disagree with his own opinion in favor of a definition he rejected more than a decade ago.

“If the Trump administration proposes a new rule along the lines of what is in the current draft I would bet good money that it would be overturned in court, and I say that without even knowing how they might embellish the record or try to defend this new approach,” Mark Squillace, professor at the University of Colorado Law School, told ThinkProgress in an email after reviewing the draft.

Perhaps further complicating matters concerning the Trump administration’s rewrite of the rule, industry groups close to EPA Administrator Scott Pruitt are reportedly pushing for the EPA to outsource rewriting the rule to private law firms. That would allow Pruitt to bypass career EPA employees who worked on promulgating the Obama administration rule, and would mean less public scrutiny of the decision-making process. Legal experts told Politico that such a move would be “likely legally doable,” but “almost unheard of.”

On April 19, amid rumors of outsourcing the rule-making process and Pruitt’s reported intention to rewrite the rule as quickly as possible, 26 environmental and conservation organizations sent Pruitt a letter asking the agency to reconsider basing the rewritten rule on Scalia’s opinion.

“We especially fear the damage that a final rule would inflict on the nation’s waterways if, as Executive Order 13,778 forecasts, it relies on a legal test that a majority of the justices on the Supreme Court rejected and that would weaken the federal rules so that they protect fewer resources than they have in several decades,” the letter read.

If the Trump administration moves forward and finalizes a rule based on Scalia’s opinion, the rule is certain to face a suite of challenges from environmental groups in court. And while the draft of the rule could certainly change before being finalized, Ann Powers of Pace Law School said that drafting a rule based on Scalia’s opinion certainly represents a step towards rolling back clean water protections for much of America’s wetlands and waterways.

“This is not a done deal tomorrow, but it is certainly a critical step in the path to undoing a great deal of protections for our national wetlands,” Powers said. “It would be very unfortunate if this were to be implemented.”