The Swamp Stomp
Volume 15, Issue 42
On Friday, October 9, 2015 the United States Court of Appeals for the Sixth Circuit issued a stay of the US Environmental Protection Agencyâs (EPA) and the US Army Corps of Engineersâ (Corps) new rule defining the scope of federal jurisdiction under the Clean Water Act (The Clean Water Rule). Until we hear otherwise, the Clean Water Rule is no longer in effect across the entire nation. The nationwide stay may be short-lived, and is contingent upon how the Sixth Circuit answers the key question regarding its own jurisdiction. There is a briefing on the jurisdictional issue is scheduled for completion on November 4, and the court indicated that its decision could be issued âin a matter of weeks.â
There are two sets of state lawsuits that have arisen as a result of the August, 28, 2015 Clean Water Rule. The first was alliance of 18 states (Alabama, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, West Virginia, and Wisconsin) that filed motions with the Court seeking (1) a stay of the rule during the pendency of the courtâs proceedings and (2) a ruling from the Sixth Circuit that it lacked jurisdiction to hear their appeals (enabling pursuit of their cases before the district courts). On July 28, 2015, the U.S. Judicial Panel on Multidistrict Litigation consolidated all Court of Appeals cases in the Sixth Circuit.
On August 27, 2015, the U.S. District Court for North Dakota granted such a motion filed by a second set of 13 states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, North Dakota, Nebraska, Nevada, South Dakota, Wyoming, and New Mexico). This was one day before the new Clean Water rules was set to go into effect. On September 4, 2015, the court clarified that the rule was enjoined only in the 13 plaintiff states, not nationwide. The EPA and the Corps promptly informed the public that enforcement of the new rule in all but the aforementioned 13 states would commence effective August 28, 2015. Enforcement would also pertain the 18 states in the other case.
The Sixth Circuit Court in a 2-1 decision issued a stay of the new Clean Water Rule on October 9, 2015. Two judges in the majority found that the petitioners had demonstrated a âsubstantial possibility of success on the merits of their claims,â specifically mentioning that it was âfar from clearâ that the new ruleâs distance limitations were harmonious with the Supreme Courtâs 2006 decision in Rapanos. The court also indicated that the process by which the distance limitations were adopted was âfacially suspectâ because the proposed rule did not include distance limitations, calling into question whether the final rule was a logical outgrowth of the proposal (as required under the Administrative Procedure Act). Finally, the court found that the government had not âpersuasively rebuttedâ the petitionersâ argument that the ruleâs bright-line distance limitations were devoid of specific scientific support.
In an interesting twist, the lone dissenting judge did not reach the merits of the petitionersâ motion, believing it was ânot prudent for [the] court to act before it determines that it has subject-matter jurisdiction.â The majority of 2 countered that it had âno doubtâ of the courtâs authority to make orders preserving the status quo pending consideration of the outstanding jurisdictional question.
At the heart of this matter is the concept of statesâ rights. The issue is that under the Clean Water Act the state makes the water quality decisions in regards to impacts to both waters of the US and waters that the state has legislated as jurisdictional by the state. As a not so minor point of fact, the Clean Water Rule has nothing to do with improving water quality. It simply designates what is and what is not regulated by the federal government. There is not one syllable in the rule that discusses how the implementation and enforcement of the rule will benefit water quality. We the regulated public are left to assume that if the federal government regulates the waterbody, it will by default become cleaner. It does not take much research to document that this is rarely the case. The recent disaster in Colorado comes to mind.
It is for this reason that under section 401 of the Clean Water Act the states are responsible for water quality decisions. The authors of the original Act recognized this for simple reason that water quality is best managed on a local level. It is simply not possible for a federal entity to have the sensitively to the local needs. This is underscored by another aspect of the Clean Water Actâs goal of transferring jurisdictional determination and permitting roles to the state. This is laid out in detail under section 404(g). It was never the intention of the Actâs authors for the federal government to perpetually run the Clean Water Act programs. Rather it was their intent to transfer this role to the states.
The EPA and Corps are on Constitutional shaky ground. At issue is the role of the federal government. In every wetland related Supreme Court case the Court has ruled based upon the Commerce Clause of the Constitution. The federal government can only regulate waters of the US in so far as the impacts to them effect interstate or foreign commerce. Unfortunately, the concept of significant nexus as defined by Justice Kennedy in the Rapanos case has been widely misinterpreted. A significant nexus to downstream waters has to effect interstate or foreign commerce in order to make a water body federally jurisdictional. Making the clean water âdirtyâ is not the same thing. The Commerce Clause must be satisfied to enable federal jurisdiction.
The states are not limited by the Commerce Clause. If the voting public in a state decides to pass legislation though their state representatives to protect a certain water body type, they are empowered to do this. However, this must take the form of legislation and not rule making. When the Supreme Court ruled in the SWANCC case that isolated wetlands (not commerce connected) are not federally jurisdictional, many state environmental departments tried to enforce rules to protect these types of wetlands. If there was not enabling state legislation, these rules fell apart.
The bottom line is the question as to whether the federal government can mandate regulation over land that would otherwise be regulated by the state without satisfying the Commerce Clause. There is also the small matter of the Administrative Procedures Act (APA) question as to the manner in which the rules have been vetted thought the public review process. It was sort of a bait and switch operation. However, this may delay the implementation of the Clean Water Rules but it most likely will not derail it. That matter is left to the state cases.