Environmental Protection Agency

Federal Court Rejects EPA Attempt to "Suspend" WOTUS Rule

The Trump Administration faces another legal setback in its effort to reform federal environmental regulation.

|The Volokh Conspiracy |

A federal district court in South Carolina has issued an injunction against the Trump EPA's attempt to "suspend" the Obama Administration's WOTUS ("waters of the United States") rule pending the agency's completion of an attempted regulatory re-write. As a consequence of this ruling, the Obama EPA WOTUS rule will be in effect in 26 states. A separate injunction issued by a separate federal court in separate litigation has enjoined enforcement of the Obama WOTUS rule in the remaining 24 states.

At issue is the federal regulatory definition of "waters of the United States," which determines the scope of federal regulatory jurisdiction under the Clean Water Act (CWA). The CWA prohibits the unpermitted discharge of pollutants, including the deposit of soil or fill material, in "waters of the United States." The broader the definition of "waters," the broader the federal government's regulatory reach over potentially polluting activities and much normal land-use that is covered by the CWA's provisions.

Beginning in the 1980s, the EPA and Army Corps of Engineers adopted an aggressive and expansive interpretation of their CWA jurisdiction. Litigation ensued, and the Supreme Court twice rebuked the agencies for adopting an overly expansive interpretation of "waters of the United States." As these decisions should have made clear, the agencies needed to adopt a new regulatory definition of "waters consistent with the CWA's text and broader federalism princples, yet the Bush Administration balked at taking any such step, lest they provoke an unnecessary environmental controversy.

The Obama Administration eventually stepped up to the plate with a new regulatory definition of "waters" under the CWA, the so-called WOTUS rule. As one might have anticipated, this definition—while narrower and more thoroughly substantiated than the approach which had drawn the Supreme Court's ire—was quite expansive, and threatened to reach many lands and waters that have a minimal connection to interstate waters.

More litigation ensued, resulting in a trip to the Supreme Court to resolve where legal challenges to the WOTUS rule should be filed, and an injunction against the WOTUS rule's enforcement in 24 states which had sought to challenge the rule.

In the meantime, the Trump Administration began working toward the eventual repeal of the WOTUS rule, and its replacement with a less expansive definition that would constrain federal regulatory authority. Such revisions take time, however. In order to prevet enforcement of a rule the Administration does not support, the EPA issued a rule purporting to "suspend" the effective date of the WOTUS rule so as to allow time for the adoption of a new definition. The only problem is the Administration adopted this rule on the fly, without much consideration or comment on the merits of this approach.

Environmentalist groups sued to challenge the suspension, resulting in today's injunction. As the district court explained, the effect of the suspension rule was to reinstate the prior regulatory definition and this sort of substantive change requires a more fulsome administrative process, and opportunity to comment, than the EPA (and Army Corps) provided.

The agencies refused to engage in a substantive reevaluation of the definition of the "waters of the United States" even though the legal effect of the Suspension Rule is that the definition of "waters of the United States" ceases to be the definition under the WOTUS rule and reverts to the definition under the 1980s regulation. . . . [T]he agencies' decision to promulgate the Suspension Rule without allowing the public to comment on the substance of either the WOTUS Rule or the 1980s regulation . . . renders the notice-and-comment rule making infirm under the APA. An illusory opportunity to comment is no opportunity at all.

On this basis the court issued a nationwide injunction against the suspension rule. However, because the WOTUS rule itself is also enjoined in parts of the country (due to litigation noted above), the practical effect is that the WOTUS rule applies in 26 states, and the pre-WOTUS rule applies everywhere else. Sean Hecht has more on the court's decision at Legal Planet here.

An appeal is likely, as are additional proceedings in the parallel WOTUS litigaiton. As a consequence, it's only a matter of time before WOTUS makes its way back to SCOTUS.

[Note: I cleaned up some imprecise langauge about the operation of the CWA.]

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57 responses to “Federal Court Rejects EPA Attempt to "Suspend" WOTUS Rule

  1. “As a consequence of this ruling, the Obama EPA WOTUS rule will be in effect in 26 states. A separate injunction issued by a separate federal court in separate litigation has enjoined enforcement of the Obama WOTUS rule in the remaining 24 states.”

    Madness.

    1. You either allow a single judge to issue universal injunctions or deal with separate rulings.

      1. When the legal system produces diametrically opposite results like this, it demonstrates that there is no objective reality called “law,” and that what we have is simply politics all the way down. In which case, there is no particular reason why unelected officials should be allowed to substitute their judgment for that of elected officials.

        1. Some actually view it as a feature to have an official only remotely tied to an election speak words as law. Takes the politics out of it.

          Putin, Chavez, Casto, Hitler, et al. agree.

          Pro tip: The Godwin rule does not apply if the comparison is apt.

    2. I for one welcome our black robed overlords.

    3. Worse, the EPA will presumably be starting enforcement actions in those 26 states that will be moot in a few months.

  2. In the seventh paragraph, should it really be “fulsome”? It’s not a synonym for “complete” or “extensive”, which seems to be what Adler wants to say.

    1. And in the subtitle, “The Trump Administration faces another legal setback in its effort to reform federal environmental regulation” I think “reform” is not accurate, and the correct term is “gut.”

      1. I would object instead to the term “setback”. It was a “roadblock”, something that is frequently done today by activist judges trying to keep the Trump Administration from doing its job. The Supreme Court will need to slap them down again.

        1. “Activist judges” insisting that the Trump Administration follow the law. Can’t have that, can we, MikeR6?

          1. A law that judges have repeatedly found to be unconstitutional you mean?

            1. What are you talking about?

      2. In this case, gutting the WOTUS Rule adopted by the Obama Administration IS a reform.

    2. The dictionary lists “fulsome” as ‘copious, abundant or generous’, sometimes with a connotation of ‘excessively so’. Absent the connotation, that does seem to make it a synonym for ‘complete’ or ‘extensive’. And with the connotation, well, I can’t tell what Alder might have wanted to imply. Federal lawsuits over the amount of bureaucratic process necessary for a temporary suspension of a rule that’s going to be replaced anyway and which is already invalid for half the country? From the outside, it sure sounds like making mountains out of molehills.

      1. I think he wanted to say “fuller” or maybe just “full” and “more fulsome” came out.

      2. It’s ironic the bureaucratic processes were deliberately put in place to slow down runaway regulatory agencies.

        Need an adendum — may be removed or reduced without ponerositaciousness.

  3. Possible typo: ‘The CWA permits the dischrage of pollutants, including the deposit of soil or fill material, in “waters of the United States.” The broader the definition of “waters,” the broader the federal government’s regulatory reach over potentially polluting activities and much normal land-use that is covered by the CWA’s provisions.’

    ‘Permits’ or ‘prohibits’? Seems as if the later rather than the former would broaden fed jurisdiction.
    Also perhaps want to correct ‘dischrage’.

    1. Liam: “The CWA permits the dischrage of pollutants,”

      Actually, the right word would be “regulates.” One can apply for a permit to dump certain quantities of (I’ll call it) “stuff” in the waters of the United States (however defined) and it may — or may not — be allowed under certain conditions.

    2. Permits. It’s by default illegal, and you need to get a permit in order to do anything. The most common issue is bulldozers “polluting” drainage ditches with dirt. That’s the real issue. The definition of Waters of the United States is so broad that if you own a bulldozer, you are guilty if they want you to be.

    3. The CWA authorizes the US EPA to issue NPDES permits that allow entities to discharge pollutants to navigable waters.

      A reasonable human being might infer that “navigable waters” refers to bodies of water large enough to accommodate a boat. Early on I think this was the case. Over the years the standard has been to protect “waters of the US”, the definition of which has been expanded over the years so that, for instance, if you own land that has one inch of water on it for more than an arbitrary number of days per year, you live in a wetland, which is now considered to be waters of the US.

      1. So another constitutional power given to Congress to increase business and stop states from getting in the way is now regularly used to harm business by getting in the way (pending “donations” or connections, of course, which is exactly the kind of corruption that keeps down so many nominal democracies around the world.)

    4. It’s confusing language regardless.

      Some people (like me) read “permits” to mean “allows,” at least initially.

      “The First Amendment permits the practice of Buddhism.”

      How about “The CWA prohibits the discharge of pollutants,….without a permit.”

  4. Can we please get to a point where we do not consider the furrows created by a farmer with his tractor crossing his field every day being mud puddles that created navigable waters regulated by EPA. Will the environmental activist at least allow a farmer to rotate his crops without a federal permit?

    1. You’re not holding your breath, are you?

    2. Is that crop organic argula? It might be ok.

      But if it’s round-up ready him soy being grown for cattle feed, then I think you are going to have a problem.

  5. What happens for bodies of water that cross the boundaries?

    1. That cross (or straddle) state boundaries? I think the feds already have control of those. The Obama era rule pertained more to wetlands and bodies of water within state boundaries that drained into such bodies.

      1. Hell, the Obama WOTUS rule included dry arroyos in the desert Southwest because they might have water during a flash flood.

        1. Some of the wetlands defined by the EPA were nominally dry areas that may be in an area that gets rain over the same area year after year during a specific short time period. They broadly defined wetlands for regulatory control

  6. Just another example of the Trump presidency acting like the banana republic it is.

    The administration of federal law by fiat.

    No process, no input, no consideration of the public.

    We can (and should) disagree on policy and goals, etc, but as bloggers and commentators interested in law, we absolutely have to agree and insist upon the preeminence of process.

    1. Obama administration makes rules: totally ok.
      Trump administration makes rules: banana republic.

      Got it. “But Trump!! RREEEEEEeeeEeeeeeeee!”

      1. Jeez did you even read my comment or did you just go Pavlovian when you saw ‘apedad.’

        It’s not about the rule they make–it’s how they make it.

        1. The obama administration got hit with the same violations of process as found here. O don’t remember you ever calling his administration a banana republic.

      2. I hate the Trump’s endgoals, to be sure. Thank goodness he’s so inept at pushing for them.

        But I do like the current Trumpists insistence that not only are Trump’s goals the best, but his slapsash methods are also perfection manifest.
        And anyone who thinks he’s undercutting himself is underestimating the power of the Deep State.

        Though to cast a shadow on my silver lining, the favoring of personality and narrative over function may be short-term amusing, but long-term it is not a healthy attitude for a substantial subset of a Republic to hold.

        1. “favoring of personality and narrative over function may be short-term amusing, but long-term it is not a healthy attitude for a substantial subset of a Republic to hold”

          Then why did you support Obama?

          1. I liked Obama because his incremental and coordinated all the heck methods were meant to be as effective as possible.
            I would also note that many on the left don’t like Obama specifically because they think his methods should have been more sweeping and reactive.
            But both sides are interrogating Obama’s methods.

            What I do not do is support Obama because everything he does is magic and we’d have a utopia if it weren’t for those meddling Republicans.
            Which is more or less what a number on this thread say about Trump: His methods are perfect, and the only reason courts keep repeatedly saying he should show his work is because they hate him.

            Politics of delegitimization.

            1. First time ever someone called wotus, ACA, daca, attempted paca, etc as incremental.

              1. Yeah, you might want to read what liberals actually want. And not even like DSA liberals, actual mainstream liberals. All of those are half a loaf.

                The right painted and continues to paint everything Obama did as radical. Doesn’t mean it was, either in substance or method.

    2. Really apedad?

      Yet you had no problem with States being forced to provide SSM licenses without legislation, no process, no input, no consideration of the public?

      The only banana republic I’ve seen is under Obama with his “pen & phone”!

      1. FlameCCT, you don’t get to yell about Obama’s pen and phone when executive orders are all Trump operates under. And then Trump is explicetly and proudle retaliating against his opposition. Literally everything the right has decided Obama was doing covertly Trump is doing overtly and with zero internal protocols to restrain him.

        From yanking clearences to pardoning buddies to military parades, yelling about Obama being the real authoritarian won’t get you where you want to go anymore.

        1. “you don’t get to yell about Obama’s pen and phone when executive orders are all Trump operates under.”

          Conservatives all said that reliance on executive orders was bad policy under Obama. Your side rejoiced in it.

          Goose, gander.

          1. 1) As I noted, what Trump is doing is vastly more common, sweeping, petty, has less oversight.
            2) The reson why is also different – Obama was using it as a lever against a Congress that was overtly, proudly, transigent. Trump is just an impulsive authoritarian.
            3) Even were there to be a proper paralell, ‘goose, gander’ is schoolyard BS and not actually they way to make policy.
            4) Even were it a good way to make policy, you STILL don’t get to complain that Obama is bad as you revel in your guy being twice as bad.

            1. 1) Once the trail is blazed, bigger wagons can go thru.

              2) Its always different when we do it.

              3) Politics is mainly schoolyard BS. Once one side does something, expect the other side to expand on it.

              4) See 2) above.

              1. Putting aside the how completely your logic exonerates the GOP from literally everything they could possibly do (remember how Obama droned an American citizen? Look out NYT!),

                your endorsement of using Obama’s actions as both a sword (Obama was bad) and a shield (Trump can’t be so bad because Obama did the same thing) is some weak sauce partisanship before country.

                1. They are both bad.

                  However, tactics [phone and pen!] used by one side are fair game to be used [and expanded on] by the other. Its how things work, and always have.

                  Don’t want none, don’t start none.

                  1. No, principals are a thing that exists. Unless you’re a moral nihilist who thinks politics are basically the prison yard. And I can’t tell if you are until I see how you react whenever we get a Democratic President who tries some crap.

                    Democrats returned to blue slips after Republicans stopped the process under Bush. Or somehow ending earmarks. Or Republicans continuing to be legal minimalists after the Warren Court (until recently).

                    1. “until I see how you react whenever we get a Democratic President who tries some crap.”

                      I will hate it of course. But hopefully I won’t blather about it being “unprecedented!!!” because it likely won’t be.

                    2. We shall see!

        2. You do know trump has signed actual laws right? I know you’re generally argument is dishonesty or strawmen… But…

          1. Thanks, Jesse.
            I see you continue to yell about my dishonesty via pedantic BS like it’s some sort of unhealty hobby.

            Would you say that most of Trump’s executive actions has been via Article II inherent powers or Article II signing bills into law?

            1. “Article II signing bills into law”

              Because the feckless GOP senators won’t end the filibuster, there are few laws to be signed.

              Its the same reason post 2010 Obama resorted to executive action.

              1. Nothing Trump is doing is in reaction to Congressional intransigence, though. He didn’t even try with immigration. Or any of the other quick-and-dirty attempts to dismantle all of Obama’s actions.

                And then there’s his use of the pardon authority. And now the clearance-granting authority.

                Your paralell with Obama doesn’t hold water.

                1. “He didn’t even try with immigration.”

                  Neither did Obama before DACA.

                  “his use of the pardon authority”

                  Obama issued no pardons?

                  1. You don’t recall Obama’s attempts at getting an immigration deal?!

                    I was working in Congress at the time, and let me tell you, it was a thing.

                    Obama used the Office of the Pardon Attorney to evaluate them and the associated implications. Trump’s been offering them willy nilly to people he thinks are keen.

    3. “Just another example of the Trump presidency acting like the banana republic it is.”

      Talk about Pavlovian.

      The Obama rule was adjoined too. Terrible how its “process” resulted in an illegal rule.

  7. Setting aside the substantive area of law for a minute…
    There has to be a way for a president to rescind an illegal rule without going through notice and comment. Courts aren’t the only branch of government bound to abide by the Constitution and the laws.

    1. They actually often violate the constitution.

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