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Getting rid of a rule clarifying which types of waters are federally protected—or any federal regulation for that matter—is not as simple as issuing an executive order.
President Donald Trump’s expected order to withdraw the Obama administration’s Clean Water Rule (RIN: 2040-AF30) only sets in motion a process that could take at least 18 months to complete, legal observers familiar with the rulemaking process said.
Builders, mining operations, agricultural interests and others—many of which are players in the dozens of challenges to the rule on grounds that it amounts to federal overreach—will be left, meanwhile, with the uncertainty that prompted the regulation in the first place. Companies that can be affected by the regulation, also called the Waters of the U.S. Rule (WOTUS), include Peabody Energy, an international coal mining company, Pulte Homes and Toll Brothers, major home builders.
These companies will have to rely on federal guidance issued following a 2006 U.S. Supreme Court ruling that many said added confusion to which wetlands and various types of waters not clearly connected to rivers or lakes can be covered by federal permitting requirements. Add to that the confusion from the guidance itself that contributed to the conclusion that EPA and the corps simply needed to write a new rule to sort it all out.
To withdraw a rule, agencies—in this case the Environmental Protection Agency and the U.S. Army Corps of Engineers—must go through a formal rulemaking process that involves notifying the public that the regulation is being repealed and then take comment on that action. The agencies also will need time to undo the rationale used to justify the rule.
“Realistically, it would be hard for the new administration to go through notice-and-comment rulemaking on replacing the WOTUS rule in less than 18 months, and the process easily could take much longer,” Neil McAliley, shareholder attorney with the Miami office of Carlton Fields Jorden Burt P.A., told Bloomberg BNA Feb. 27.
The Trump order is expected to “repeal and replace” the rule with something that gives states more authority to decide what gets covered by the Clean Water Act.
Thirty-two states, including Oklahoma—represented by Scott Pruitt prior to his becoming EPA Administrator—opposed the 2015 water rule on grounds that the EPA and the corps trampled their rights and took over land-use decisions in asserting jurisdiction over waters.
The Association of Clean Water Agencies, which represents state and interstate water pollution agencies, is waiting to see how the order will improve federal state relations that states such as Oklahoma said were frayed during the Obama administration.
“We are looking forward to working with the new administrator and his team on rebalancing the state/ federal relationship. But time will tell,” said Julia Anastasio, the association’s general counsel and executive director.
At this point, it isn’t clear whether the executive order will be just a “high level directive” requiring the agencies to withdraw the rule or whether it will contain instructions to the agencies on how to rewrite the rule, said David Chung, a partner with Crowell & Moring LLP’s environment and natural resources practice.
“Is it it going to announce what might be the lawful scope of the Clean Water Act,” Chung said.
Chung compared the status of the water rule with that of the Affordable Care Act, which Trump has promised to replace without providing details about what comes next.
Developing a rule usually takes a long time. McAliley pointed to how long it took the Obama administration to complete the WOTUS rulemaking: The EPA announced the creation of the scientific advisory board to advise on technical issues surrounding the rule in March 2013; the notice of proposed rulemaking was issued in April 2014, and the final rule was issued in June 2015.
“That timeline just includes the notices in the Federal Register and not the preparation time before they launched the formal process,” McAliley said.
McAliley said the Trump administration might be able to streamline parts of this process, for instance by requiring less time for consultation with members of Congress.
But the agencies still have the major time-consuming task of undoing the rationale and technical record that the EPA and the corps developed under the Obama administration to justify the rulemaking, according to Steven Miano, shareholder attorney with the Philadelphia-based Hangley Aronchick Segal Pudlin & Schiller.
The EPA and the corps would be exposed to challenges and lawsuits once they formally withdraw the water rule, just as they were challenged all over the country when they first issued it, Miano said.
While 32 states and upward of 50 business, manufacturing and agriculture groups challenged the rule, seven states supported it and many environmental groups that largely back the rule challenged certain provisions in the rulemaking.
Lawyers and policymakers agree that any proposed rule that the agencies issue would face opposition and would probably be subject to legal challenges, Miano said.
Representatives from the Natural Resources Defense Council made it clear in a Feb. 27 briefing that they would challenge the Trump administration every step of the way as it undoes the water rule, or the Clean Power Plan, the rule that set first-ever regulations for greenhouse gas emissions from power plants.
If the federal government shies away from meeting its Clean Water Act obligations then “we shall fight them,” Jan Goldman-Carter, the National Wildlife Federation’s senior manager and counsel on wetland water resources, said at a recent American Law Institute-Continuing Legal Education seminar on Environmental Law.
As for the pending lawsuit challenging the merits of the water rule, which the U.S. Courts of Appeals for the Sixth Circuit has put on hold during the litigation, McAliley said the agencies could ask the court to return the regulation for further consideration ( In re Murray Energy Corp. v. EPA (In re EPA and Dep’t of Def. Final Rule), 6th Cir., No. 15-3751, order 1/25/17 ).
“Then it could have the effect of ending the current round of litigation,” he said. “If the existing rule is not remanded to the agencies, then the current litigation would continue.”
Buried in the tangle of lawsuits is the question of which court even has the authority to hear challenges to the rule. This is a question the U.S. Supreme Court is expected to resolve sometime next year. Most attorneys say they don’t expect the Trump administration to back away from the Supreme Court case over the question of court venue because that same question will be debated if and when a new water rule is written.
Property owners, meanwhile, will continue to grapple with the question of whether they need a Clean Water Act permit for activities on their land. That in turn means more challenges and litigation to clarify the scope of jurisdiction, as the rulemaking was issued to provide certainty, Miano said.
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