The path to a new @EPA #CleanWaterRule will be through the courts

Photo via Greag Hobbs March 29, 2015.

Scott Pruitt now faces an uncertain outcome in the courts. Here’s a report from Patrick Parenteau (Vermont Law School) writing for The Conversation. Here’s an excerpt:

EPA developed the Clean Water Rule in an attempt to resolve uncertainty created by a fractured 2006 Supreme Court decision, Rapanos v. United States. The Rapanos ruling caused widespread confusion about which waters were covered [Click through for the Reagan Waskom and David J. Cooper explainer about Ag and the rule], creating uncertainty for farmers, developers and conservation groups. Efforts to clarify it through informal guidance or congressional action had failed, and EPA acted under mounting pressure from various quarters, including some members of the court.

As Oklahoma’s attorney general, Pruitt unsuccessfully sued to kill the rule, which he has called “the greatest blow to private property rights the modern era has seen.” Now he is seeking to accomplish by administrative fiat what he failed to achieve in court. However, he faces a stiff challenge from supporters of the rule, and the courts may not buy his arguments for wiping a rule off the books.

Under the Administrative Procedure Act, federal agencies must follow specific steps when they seek to establish or repeal a regulation. These procedures are meant to establish efficiency, consistency and accountability. To promote fairness and transparency, the law requires that the public must have meaningful opportunity to comment on proposed rules before they take effect.

The Clean Water Rule emerged from an extensive rule-making process that featured over 400 meetings with state, tribal and local officials and numerous stakeholders representing business, environmental and public health organizations. It generated over one million comments, the bulk of which supported the rule.

This process was preceded by a comprehensive peer-reviewed scientific assessment that synthesized over a thousand studies documenting the importance of small streams and wetlands to the health of large rivers, lakes and estuaries. According to a 2015 fact sheet, which has been scrubbed from EPA’s website but is archived here, the rule protects streams that roughly one in three Americans depend upon for their drinking water.

To undo the Clean Water Rule, EPA will have to go through the same notice-and-comment process. Pruitt’s proposal to rescind the rule will be published in the Federal Register sometime in the near future. From that date, the public will have just 30 days to file written comments electronically. (Normally public comment periods last for 60 days, and the Clean Water Rule was open for comment for 120 days.)

[…]

EPA must then review and respond to the comments, make any changes it deems necessary and publish a final rule. Parties with standing can then challenge the final rule, although there is a question as to which court will have jurisdiction to hear them. The Supreme Court is scheduled to hear arguments on this issue in the fall. In weighing challenges, the key question the court must address is whether EPA’s action is “arbitrary and capricious,” meaning that the agency has failed to consider important aspects of the problem or explain its reasoning.

In a seminal 1983 decision, the Supreme Court ruled that an agency must supply a “reasoned analysis” when it rescinds a rule adopted by a previous administration. The court acknowledged that agencies have some discretion to change direction in response to changing circumstances. However, it noted that “the forces of change do not always or necessarily point in the direction of deregulation.” Further, the court said that a decision to rescind a rule would be arbitrary and capricious if it offers an explanation “that runs counter to the evidence before the agency.”

Pruitt asserts that his repeal “need not be based upon a change of facts or circumstances,” citing a 2009 opinion by Justice Antonin Scalia. But in my view, Pruitt reads too much into that decision, which simply held that an agency did not face “heightened scrutiny” – that is, an extra-high bar – when changing policy, but must still “show that there are good reasons for the new policy.” As Justice Breyer observed, dissenting in the same case, “Where does, and why would, the Administrative Procedure Act grant agencies the freedom to change major policies on the basis of nothing more than political considerations or even personal whim?”

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