Bending Toward Justice: States, environmental groups sue EPA in three federal courts over delay of Clean Water Rule

Eleven states and a handful of environmental advocacy groups filed three separate lawsuits Wednesday against the Environmental Protection Agency, the Army Corps of Engineers, and EPA Administrator Scott Pruitt over EPA’s suspension of a comprehensive Clean Water Rule promulgated by the Obama administration in 2015.

These lawsuits are just the latest twist and turn in a multi-decade battle over which “waters” the Clean Water Act was designed to protect. Not surprisingly, the Trump administration wants to return to a confusing regulatory scheme with a narrow definition of “waters.”

Congress enacted the The Clean Water Act in 1972 for the purpose of “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation’s waters.” To reach that goal, the Clean Water Act prohibits anyone from, among other things,  discharging pollutants into navigable water without a permit. The statue broadly defines navigable water as the “waters of the United States.” Environmentalists, states, industry and the EPA have been fighting about the meaning of “waters of the United States” for more than 40 years.

One of the flash points in this long-running dispute is how to classify wetlands, streams and tributaries. In early decisions interpreting the Clean Water Act, the U.S. Supreme Court interpreted the phrase “waters of the United States” broadly to include most kinds of wetlands, streams and tributaries. But the Court pulled back from that approach in a confusing, plurality decision in Rapanos v. United States (2006). In Justice Kennedy’s opinion, he wrote that the Clean Water Act protects waters that have a “significant nexus” to navigable waters. But his wasn’t the majority opinion. That went to Justice Scalia, who took a more narrow view of the statute.

This may sound like an esoteric dispute, but more than 100 million Americans get their drinking water from from wetlands, streams and tributaries.

The Supreme Court’s inability to reach a clear consensus gave industry an opening to argue that this wetland and that stream wasn’t covered and that, therefore, they didn’t need permits. George W. Bush’s administration essentially went along with this approach, which signaled a substantial retrenchment in the Clean Water Act’s protections.

The Obama administration said, “Enough.” With the goal of creating a clear and consistent definition of “waters of the United States,” EPA and the Army Corps convened scientific panels, reviewed more than a thousand studies, and solicited comments from all the stakeholders and the public. The question EPA and the Corp sought to answer was which “waters” are physically, chemically, and biologically connected to rivers. The result was the Clean Water Rule, which went into effect in 2015.

Backed by a deep scientific understanding of the interconnectedness of waterways, the Clean Water Rule adopted Justice Kennedy’s “significant nexus” standard. In so doing, the rule clarified that tributaries and adjacent waters have a “significant nexus” to downstream waters and are covered by the Act.

And then, as happens with every new and significant federal rule, everyone sued. Industry sued claiming the rule was too expansive. Environmentalists sued claiming it was too narrow. There was even a fight over the lawsuits were properly filed in U.S. district courts or whether the federal courts of appeal had original jurisdiction.

The upshot of all the litigation? The U.S. Court of Appeals for the Sixth Circuit blocked the new rule, pending a resolution of the merits. But two weeks ago, the Supreme Court ruled that federal district courts — and not federal courts of appeal — have original jurisdiction over disputes under the Clean Water Act. So now the Sixth Circuit’s stay is on shaky ground, as that Court took jurisdiction over a direct challenge to the Clean Water Rule.

Amid all of this confusion in the courts, EPA and the Corps proposed repealing the Clean Water Rule; issued a draft repeal regulation; took in public comment; let the repeal regulation languish; proposed a new rule changing the “effective date” of the Clean Water Rule; and then issued a different regulation on January 31, 2018, suspending the Clean Water Rule until February 6, 2020. EPA also said it would undertake its own study on navigable water and issue its own clean water rule, sometime in the future.

Which brings us back to the three lawsuits filed on Tuesday.

New York, along with nine other states and the District of Columbia (California, Connecticut, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, and Washington) filed their lawsuit in the federal district court in Manhattan. A similar lawsuit was filed in that same court by the Natural Resources Defense Council and National Wildlife Federal. A coalition of environmental groups led by the South Carolina Coastal Conservation League filed their own lawsuit in federal district court in Charleston, South Carolina.

They’re all challenging the new “suspension” rule that puts the Obama-era Clean Water Rule on hold until 2020. The claims are based on the Administrative Procedures Act and allege that EPA and the Corps short-circuited the mandatory process for promulgating new rules, and enacted a rule that is arbitrary and capricious, given the scientific, policy and legal record developed by the Obama administration.