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Nov. 29 — Legal challenges to a major Clean Water Act rule could be rendered moot if the incoming Trump administration persuades the courts to send the regulation back for a rewrite, several water attorneys told Bloomberg BNA.
President-elect Donald Trump singled out the currently stayed Clean Water Rule for rollback during his campaign. Since the election, Trump reiterated his position on his transition team website: “We will eliminate the highly invasive ‘Waters of the US’ rule.’”The Clean Water Rule (RIN:2040-AF30), also known as the waters of the U.S. (WOTUS) rule, issued by the Environmental Protection Agency and the U.S. Army Corps of Engineers, clarifies which waters and wetlands fall under the protection of the Clean Water Act.
The U.S. Court of Appeals for the Sixth Circuit is reviewing the rule, which it stayed last October. The 32 states and dozens of groups representing business, agriculture, manufacturing and property rights challenging the rule say it represents government overreach and further muddies the scope of the Clean Water Act.
During the past several days, environmental attorneys have discussed with Bloomberg BNA what options are available to the Trump administration if it decides not to defend the rule in the nearly a dozen lawsuits filed in federal appeals and district courts.
If the Justice Department refused to defend the rule, other intervenors that have the status of parties to the suits could step in to mount a defense, Harvard Law School Professor Jody Freeman said in an e-mail.
However, these lawsuits can be rendered irrelevant, Freeman added.
“If DOJ asks the court to hold the case in abeyance and send the rule back to EPA the agencies for reconsideration, then if the lawsuit would be put on hold, and EPA would have a chance to revise the rule, potentially mooting any litigation,” she wrote in an e-mail. Right now the rule is stayed, so it is not being implemented in any event, she added.
But could the Trump administration simply rescind the rule and then do nothing?
If a rule is mandated by statute, then the administrative agency has to issue a regulation and defend it in court, she said.
“It can’t say, well, we’d rather not make this decision, even if the law tells us to,” Freeman said.
In this instance, she said, the Supreme Court already has ruled on the question of Clean Water Act jurisdiction over wetlands, and the agencies face pressure from the regulated community to more precisely define the waters it may regulate.
However, Freeman said, the Trump administration could reconsider the rule and adopt a narrower interpretation of the authority of the Army Corps of Engineers and the EPA. It would then need to defend this decision, if challenged in court.
“So in the case of WOTUS, the corps and the EPA could take a more limited view of their jurisdiction,” she said.
Fredric Andes and Jeffrey Longsworth, attorneys with the Chicago and Washington, D.C., offices of Barnes & Thornburg LLP, agree that the lawsuits would be rendered moot if the government informs the court of its plans. Longsworth is the attorney who helped write a friend of the court brief for 88 U.S. lawmakers who oppose the rule.
“I think the agencies should publish a notice in the Federal Register announcing their plans to withdraw the rule and to reinitiate the rulemaking,” Longsworth said in a telephone interview. “That way they could turn to the court and say we published a notice about our plans when seeking an abeyance.”
Longsworth said the EPA could withdraw the rule through notice and comment, or Trump could issue an executive order directing the EPA to withdraw the rule. But Andes, who joined Longsworth on the call, said the new president cannot merely issue an executive order to withdraw the rule.
Rather, it would be required under the Administrative Procedure Act to go through a notice and comment process, he said.
“Remember what happened with President Ronald Reagan who issued an executive order withdrawing pretreatment regulations soon after his inauguration in 1981. The Third Circuit said you can’t do that without going through notice and comment,” Andes said.
A revised rule would be the most effective way to yield a regulation that provides more certainty to the industry, which Trump has repeatedly pledged to protect, said Joshua Belcher, associate with the Houston office of Sutherland Asbill & Brennan LLP.
At the same time, many of Trump’s advisers on the transition team have advocated slashing the EPA’s budget, which would severely constrain its ability to rewrite rules, a labor- and time-intensive process, Belcher said. “That will require a balancing act of resources.”
At the end of the day, the question remains whether the Trump administration is looking for the quickest way to fulfill its campaign promise by just pulling back from the rule altogether or by backing a long-term solution to the question of jurisdiction, Belcher said.
Regarding the pending petition before the Supreme Court, Andes said, the High Court is unlikely to move on it if the government has voluntarily offered to remand the rule.
The Supreme Court was asked by the National Association of Manufacturers to review whether a federal district court or an appeals court is the appropriate venue to hear challenges to the Clean Water Rule. The association’s petition was backed by 32 states as well as a coalition of agriculture, property rights, business and industry groups. The government’s response is due Dec. 7.
Longsworth said the Supreme Court is not likely to accept the petition if the underlying rule will be remanded. This is despite the fact that the petition deals with resolving the confusion over legal review of the water rule, and potentially all other rules that don’t fit neatly into the categories of effluent limits, permits and water quality standards that the Clean Water Act says should be reviewed by a federal appeals court.
The Supreme Court will try to get rid of a petition based on mootness or standing before taking the issue up on the merits, Longsworth said.
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