WASHINGTON, Jan. 4, 2017 - The top priorities for the man expected to head the Environmental Protection Agency in the new administration will include getting rid of the “waters of the U.S.” rule (aka WOTUS) and the Clean Power Plan (CPP).
But neither can be accomplished by the snapping of Scott Pruitt’s fingers, or the stroke of Donald Trump’s presidential pen.
The goals of Pruitt, Trump’s choice for EPA chief, are not difficult to predict. As attorney general of Oklahoma, he has filed lawsuits challenging WOTUS and the CPP.
WOTUS has been a target for farmers, ranchers, energy companies and developers since it was announced in 2015. They argue that EPA, which developed the rule with the Army Corps of Engineers but also ignored critical comments by the Corps late in the rulemaking process, vastly overstepped its legal authority. Pruitt says that WOTUS tries to exercise jurisdiction over non-navigable streams and dry creek beds with no connection to navigable waters, as required by the Clean Water Act.
Environmental groups argue otherwise. They note that the Clean Water Act itself defines navigable waters as “waters of the U.S.,” and contend EPA has reasonably defined “waters” to include small streams and tributaries with a “significant nexus” to navigable waters.
Before Pruitt gets a chance to tackle the definition of “waters” in the law, however, he will have to work with the Justice Department to determine a legal strategy. That’s because the rule is the subject of litigation, with more than half the states – and numerous trade associations, such as the American Farm Bureau Federation – challenging the agency.
The 6th Circuit Court of Appeals in Cincinnati has stayed implementation of the rule. Parties may submit briefs through March, with oral arguments to follow. But the new administration can put a halt to that.
Tim Bishop, a lawyer with Mayer Brown in Chicago who is representing AFBF and a host of other farm groups, says it’s likely that EPA and the Corps will ask the court to hold the matter “in abeyance” while the Trump administration decides what course to take.
“Then, once the agency people are in place, they can make a decision to reconsider the rule,” Bishop said in an email. “Reconsideration, the next step, could result in withdrawal of the rule, or withdrawal and replacement with another rule, either of which require notice-and-comment rulemaking.”
He noted that “the abeyance/announce reconsideration sequence is just what the Obama administration did” with the ozone rule approved by the EPA during the George W. Bush administration.
There’s another piece of the puzzle, Bishop noted: The Supreme Court is considering a petition filed by the National Association of Manufacturers – which he represents – questioning the appeals court’s jurisdiction over the matter. The proper place to litigate the matter is in federal district court, not the appellate court, NAM argues.
The Supreme Court is scheduled to consider the petition at a Jan. 6 conference. If it decides to review the matter, “then that would surely trigger a stay of the (6th Circuit) litigation separate from any issue of abeyance,” Bishop said.
Jon Devine, senior attorney for the Natural Resources Defense Council’s water program, said that the new administration will encounter “rough sledding” if it wants to repeal WOTUS, “because the rule’s protections are popular, rely on an extensive scientific record, and easily fit within the Clean Water Act.”
“Second, though we’re not going to speculate about what the new administration might try to do in court, we’d note that NRDC (the Natural Resources Defense Council) and many of our partners are full parties to the litigation, and can fight for these public health and environmental safeguards even if the government seeks to retreat from a full defense of the rule,” Devine told Agri-Pulse in an email.
WOTUS, of course, isn’t likely to be the only big issue targeted by Pruitt. The Clean Power Plan also will be on the chopping block.
Similar to the WOTUS rule, the CPP has been stayed by the courts, in its case by the Supreme Court. But a major difference is that the CPP, which is designed to reduce carbon pollution from power plants, has been partially implemented. (A report from the Carbon Tax Center says that the electricity sector is already four-fifths of the way toward reaching the plan’s 2030 carbon reduction goal.)
In addition, arguments have been held on the CPP before the D.C. Circuit Court of Appeals, which could decide to uphold the rule.
“Some states and some companies are on their way,” acknowledges attorney Tom Lorenzen of Crowell & Moring, who represents the National Rural Electric Cooperative Association in the litigation. But, he adds, “Whether this thing (the CPP) is the most sensible way of dealing with the climate change issue is a matter of serious debate.”
Lorenzen says the Clean Air Act’s Section 111, which EPA has used as the basis for the CPP, is not the right way to address carbon emissions – “you are cramming a square peg into a round hole.” However, repealing the CPP won’t be easy. Trump “won’t be able to sign an executive order to make it disappear. They have to go through a whole new rulemaking.”
If the CPP ends up back in EPA’s lap, Pruitt will have to choose how to kill it. One option, which Lorenzen calls a “huge undertaking,” would be to reconsider its 2009 “endangerment finding” that greenhouse gas pollution endangers human health.
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