The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.]