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By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends much of her time in Asia and is currently researching a book about textile artisans. She also writes regularly about legal, political economy, and regulatory topics for various consulting clients and publications, as well as scribbles occasional travel pieces for The National.
The Environmental Protection Agency (EPA), Department of Army, and Army Corps of Engineers yesterday announced “they are proposing a rule to rescind the Clean Water Rule– adopted in 2015– by re-codifying the regulatory text that existed prior to 2015 defining “waters of the United States” or WOTUS,” according to this EPA press release from yesterday.
A February 28 Trump executive order kicked off the process for reconsidering exactly to which waters the EPA’s clean water regulatory policy applies. That order said:
It is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the States under the Constitution.
In order to meet these objectives, the EPA press release announces that the three agencies “intend to follow an expeditious, two-step process that will provide certainty across the country.” Exactly what the agencies propose to do is spelled out in this 42-page document.
As the first step in this rule-making process, the proposed new Trump administration rule would recodify the identical regulatory text that existed prior to adoption of the 2015 Clean Water Rule in 2015 and that currently remains in place following an October 2015 decision by the U.S. Court of Appeals to stay the 2015 rule. So, the press release explains, that the new rule-making, “when final, will not change current practice with respect to how the existing definition applies.”
The second-step in the rule-making– upon which the agencies have already embarked– will be “a re-evaluation and revision of the definition of “waters of the United States” in accordance with the [February] Executive Order,” again according to the press release.
More detailed information about the history of the Clean Water Rule, may be found at this EPA web portal.
Clean Water Rule
The Clean Water Rule protects drinking water in the United States and is based on regulatory authority provided in the Clean Water Act of 1972. The recent rule-making process to define its scope and applicability has been unusually fraught, with debate entering on exactly what water sources are covered (which in itself is a confusing topic that has been the subject of multiple rounds of litigation over decades).
In 2015, the EPA extended protection to include streams, and some wetlands. According to this NPR report, Trump plans to ditch Obama’s protection for small wetlands and waterways-– well worth reading, by the way, for a quick introduction to the issue, written in accessible plain English:
In 2015, Obama Administration tried once and for all to define exactly what would be regulated under the federal Clean Water Act. After several years of research, including analysis of 1,200 peer-reviewed studies, the EPA defined a tributary as having a “bed, banks and ordinary high water mark,” which flowed downstream. It defined “adjacent wetlands and waters” as those “within a minimum of 100 feet and within the 100-year floodplain to a maximum of 1,500 feet of the ordinary high water mark” to the regulated tributaries or waterways.
And it included protection for isolated wetlands, like Prairie potholes out west, coastal prairie wetlands in Texas and what’s known locally as Delmarva bays. These are isolated, small wet areas fed by groundwater and seasonal rain. There are more than one thousand of these wetlands in Delaware, where they serve as nurseries for frogs and salamanders.
Yet various business interests: fossil fuel companies, big agriculture, chemical producers, home builders, mining companies, and real estate developers, to name just some– objected to the broadened definition.
As is frequently the case with any rule-making that gores any economic interests, extensive litigation followed, filed by the usual business interest group subjects– e.g., the American Farm Bureau, the United States Chamber of Commerce, and dozens of other business associations–according to this report in yesterday’s Wall Street Journal. In his former role as Oklahoma state attorney general, Trump’s newly installed EPA administrator, Scott Pruitt also filed litigation against the agency.
Status Quo Will Remain: No Protection
The result of this legal manoeuvring: the widened WOTUS rule has yet to be enforced– due to the Sixth Circuit’s stay noted above– and the status quo–less extensive regulation– therefore remains in place. According to a report in yesterday’s Washington Post, “Pruitt said that the agency would “provide clarity” by “withdrawing” the rule and reverting standards to those adopted in 2008.”
Which is perhaps very good news indeed if you’re a member of one of those interests that benefits from the current status quo– but isn’t so welcome if pollution is contaminating your drinking water or, in the case of wildlife, destroying your habitat.
Earlier this year, I wondered why Democrats didn’t target the worst of Trump’s proposed Cabinet picks, and mount any serious takedown effort. Pruitt would have topped my list of most dangerous appointees.
Although he earlier pledged to recuse himself “from working on active litigation related to the rule’’ according to the Washington Post account cited above — whatever that lawyerly parsing may be taken to mean– we know how bogus these putative “recusals” prove to be in practice.
Pruitt is proving to be skilled and adept at implementing an anti-environmental agenda. He knows the territory, and is using his full powers as EPA administrator to translate that vision into legal reality.
States Ride to the Rescue?
Much of the commentary on yesterday’s announcement has made a fairly glib and obvious comparison between this latest attempt to roll back the previous administration’s environmental agenda and Trump’s decision earlier this month to pull out of the Paris accord on climate change.
There’s one serious difference that I can see– and this, a depressing one. Trump’s Paris decision was opposed by many business interests. Some of these sought to convince Trump to stay the course on the accord. Green companies wish to move full speed ahead on an anti-climate change agenda as they expect to benefit directly. And still other activist investors are pressuring fossil fuel and other companies to disclose their exposure to climate change– including regulation– and come clean on the mitigating steps they’re undertaking. These are just some of the business interests that oppose the Trump climate change policy.
In addition, many states and cities are undertaking their own climate change initiatives– and since California is involved, as has been the case with clean air and fuel efficiency standards, those efforts may evolve to be de facto national standards.
By contrast, the business alignment on WOTUS is almost all in favor of rollback.
Now, in the case of clean water regulation, trashing the tougher federal rule will leave many tougher state water protection statutes still standing. But the consequence of this pullback may be ultimately to weaken individual state initiatives, as I don’t see state water policies becoming de facto national standards here.
So, permit me to quote from the NPR account again:
Even when Trump gets rid of WOTUS, about 20 states across the country would not be impacted because they have state laws that are more stringent than the federal rules, including Pennsylvania. But that’s not enough protection for some.
David Kinney is mid-Atlantic policy director for Trout Unlimited, a conservation organization that supports WOTUS. Kinney says those ephemeral or intermittent streams are important nurseries for trout. And he says although Pennsylvania has done a good job protecting native trout streams, loss of federal protections could mean the state backtracking on its Clean Streams law.
This latest Trump initiative is not good news for those who care about clean water, the environment, or pristine habitat.
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At least you can admire their initiative, thus showing a lie the Democrat’s argument that they – with they’re majorities everywhere in 2009 – were “unable” to rollback various Bush-era totalitarian acts, FISA, PATRIOT, etc.
Oh you foolish humans.
Our shallow thinking, unimaginative, corrupt administrations are begging, yes, begging for the rabble to revolt! I’m just so sick, sick, sick and tired of reading about how our system of “regulators” continue to have no regard for the natural environment without which their sorry asses would strangle, drown, choke to death!! Seriously! Where do we get these so useless pieces of feces that make our laws?????? Are we as a people so anesthetized and propagandized to be useless automatons in this system that we can’t even have a decent revolt???? How is history going to describe our era of non-resistance to these foul decisions? Have we no accord of any responsibility any more????
Hmmmmm…..another attempt to force the states to pick up the work of the Federal Government? And yet another attempt at trying to force us into a confederation of independent states? If you weaken the Federal Government enough, then perhaps you CAN turn back the clock to pre-1787 America……maybe that’s not far enough – perhaps we can all become city-states again……each with its own billionaire “king”……
I’m a supporter of federal jurisdiction over environmental concerns (and have argued about it on here before), but I think any observer can agree that the EPA was pretty ham-handed in how they developed the WOTUS rule, or now just “Clean Water Rule”.
The SCOTUS “Significant Nexus” problem meant that this battle was coming.
Now the EPA apparently estimated that the expansion of the Rule would mean another 1500 acres nationwide, but I think that’s probably extremely conservative from my reading of the terminology. Their first ruling showed their hand – I know a farmer with a wet spot in his field and it probably would have been covered under the rule.
You make reference here to big agribusiness opposing the rule. That’s true. But often, federal regulators were going after small farmers as much as large farmers. For instance, here’s an article about Robert Brace and Sons and their most recent encounter with the Rule. They don’t strike me as being part of some conglomerate at all.
I’m just not satisfied that the EPA knew what the hell it was doing with this regulation. Their complete ineptitude when it came to crafting the rule has got to be partially responsible for its demise.
If you read the EPA regulations, and I have – many times, you will see that they were written to fail by people who didn’t want the EPA in the first place. They are extremely confusing, have “outs” for just about anything a corporation wants to do, and are basically toothless when it counts to stopping something extremely destructive. The EPA people do their best to try to keep pollution to a minimum, but in many cases, they are fighting their own regulations….
It’s a good point. I can definitely see it.
Which just shows once again that Obama was completely inept at his job. Whether it was the legislative halls or the agency rulemaking processes, he seemed bewildered by reality almost all the time.
I used to work at EPA, a long time ago, still have some links to the place. I think Obama and his minions were in fact very “ept” at their tasks, which are continuations of long trends well-remarked upon (but of course without affecting their course) by honest observers, including of course our NC hosts and fellow commenters. It’s in the nature of regulatory capture in service to looting that such games are played.
Friends at EPA would hold that the crippling of regulations that were supposed to “protect human health and the environment” was Job One. And in the fog of faux “liberalism” that has obscured the great looting, the oligarchs and their “consultants” and “advisers” aka lobbyists that in effect write the text of all these supposed ur-regulations, got exactly what they want. And rewards, of course, are being paid to the actors who brought about this latest round of dysregulation.
On WOTUS, the war has been ongoing since befor I joined EPA. My first court case there involved Cental Illinois Light Company, a downstate “regulated utility” that built a large coal-fired plant and needed water to cool it and dilute the waste streams. So they dammed up a small river, to create a 28-mile-long lake out of ancient valleys, displaced the residents and all, and asserted that the lake fell within the definition of “perched ponds,” manmade impoundments of much smaller scale usually formed by peripheral berms. “Perched ponds” were not subject to effluent limitations and other restrictions on discharges to “surface waters.” The arrogant Justice Department sued, eventually, to collect penalties for what us mope enforcers deemed were pollution of a large lake, that then supported a new sport fishing and boating and swimming activity and other recreation. The DoJ attorneys assumed that just by examination, a court must conclude that this lake was clearly a “water of the United States,” subject to protection against pollution under the Federal Water Pollution Control Act. Wrong — they filed in federal court, did a half-assed job of prepping and presenting the case (fly-in big-ego DoJ “trial attorneys” flashing aerial photos and nice maps and a few charts and a conclusory statement by a rented “expert,” versus local plugged-in counsel for CILCO before a judge who drank deeply from the conservative well and clearly disliked anything “city” inlcuding, he noted from the bench, the sh!t that was discharge by the City of Big Shoulders into the canals and river system that included the Illinois River that flowed past his house and courtroom.)
The judge ruled that the lake, 28 miles long and 8 miles across its widest part, was not a “water of the US” but a “perched pond,” so EPA could not force CILCO to even provide “discharge monitoring reports” and indeed had no authority to require CILCO to even file for a discharge permit for coal pile runoff (carcinogenic and aquatic-toxic) or plant sewage or the several water treatment chemicals added to reduce boiler scaling from the millions of gallons that flowed through the cooling ponds and towers at the plant, let alone the basic parameters like turbidity and chemical and biological oxygen demand that impact fish and fauna in the lake — sorry, “perched pond,” where kids catch “perch” to this day. http://il.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19771104_0001821.IL.htm/qx
And the “Justice” attorneys, having screwed up the case, ran away back “upstream” to their offices in DC, and refused to appeal the ruling (which would have highlighted the screw-ups by their vaunted trial attorneys), because “it was just a district court opinion and thus only applied in that district,” (which opinion of course was cited regularly thereafter to support other corp refusals to comply with the FWPCA permitting and monitoring requirements.)
The “system” ain’t broke — it functions exactly as our Overlords and Owners intend. With an occasional nod in the direction of “doing the right thing” for the general welfare, just enough to keep the rabble pacified…
Thanks for comment.
And note that Obama didn’t implement the disputed rule until 2015–after he had been safely reelected. This seems as much of a political fight as an environmental fight as both parties are wimpy on environmental issues.
Thanks for your posts about things related to EPA as usual, that was a great read! What a nightmare.
What did you think of the SCOTUS decision on “significant nexus”?
We all need to understand the real nature of “our (sic) system of laws.” It’s all about interests and power.
I actually had a professor in law school who was very blunt about that — he taught commercial laws, Paper and Sales, but also a course on “The Legal Process.” The course materials were an almost 3-foot-high stack of photocopies and abstracts from all kinds of sources, including but going well beyond the usual case reports and law review articles, and pointed out very clearly how the system actually works, and how to game it for personal benefit and the interest of one’s clients. Stuff like an article by Karl Llewelyn, https://en.m.wikipedia.org/wiki/Karl_Llewellyn, lining up the pairs of “precepts of statutory construction” that would let a sharp attorney argue either side of any dispute — e.g., “statutes in derogation of the common law must be strictly construed,” but “statues with a remedial purpose must be broadly construed.”
This from a guy who was part of the great teaching via the Socratic Method, that still sells the idea that there are “rules” and “threads of jurisprudence” and “precedents” that (subject to that great falsehood, “the growth of the law through experience”) guide and render honest and honorable the exercise of power over us mopes and what’s left of our property. And “rights,” of course. And said professor was very clear that “there are NO ‘rights,’ in the common way of thinking — only what people and their institutions have the power to compel.”
This guy did not have to actually work — he loved teaching though. He had a huge personal pile of wealth, gained while he was still a law student. He noted that the Supremes, back in the day, had decided the “portal to portal” cases in favor of the working man- that employers had to pay workers for “prep time,” the hours spent starting up the machinery and shutting down at night, as opposed to actually “working.” He noted that this decision applied on its terms to FEDERAL workers, and took his insight to a local white-shoe law firm which took him on as a clerk and paid him a share of the huge judgment that they won in a suit against the Feds for those unpaid hours of labor… probably not entirely either “legal” or “ethical,” as he would acknowledge, under the then law and Code of Professional Conduct… But he turned his independence from most political games to what I considered a decent use…
My Torts professor, in talking about selecting clients, noted a seemingly most consistent principle in the field of tort law is that “mothers and children and orphans usually win…”
As to “significant nexus,” or “not a tax,” I can only wonder about the calculus of “values” and ‘impacts” and “interests” conducted these days by the supposed legal Solons of the Court and the kinds of Jesuitical sneaks they often choose as clerks (who have such effect on court rulings, since they do the research, write the case memos, and often the opinions. Bearing in mind that the vast majority of Supreme Court jurisprudence is “about” the dancing forms that apply between various commercial and “imperial” interests…
Sounds like you are saying that the law is merely about advocacy–knowing how to work the system–rather than truth or justice. In other words it’s straight out of the main plot line of Better Call Saul.
Roy Cohn could tell you all about it, if he were still alive. Or John Mitchell. Or quite a few others…
Now the only entities that win are the corps. He who has the most money.
Hot damn, but is that one to live by or what?!
…and the Prof offered that as a completely value-free observation, since of course corporations are people, and so are the Kochs and Waltons and Blankdimonfeins, who sure look to be the owners of the institutions…
But yeah, it would be good if us mopes (who, sadly, mostly just want MORE, for themselves, of a damaged planet’s declining resources) could organize around some principles rooted in decency and “sustainability” and find the power to stop the looting and polluting.
I don’t see much indication of that happening, except on a local level, and then only until the nascent Few, who will always rise among the “good,” figure out how to game things for their own benefit. Do you?
The will to power has damned us all.
Thanks, JTMcPhee for your legal observations on the front lines. I cringed as I read your comment because I saw the “Primary Authority” thing coming as soon as I read that DOJ didn’t appeal that ruling. I am not surprised by the inaction on part of the DOJ attorneys. It has always seemed to me that the EPA was set up to fail. To fail the American people that is. This is one of many reasons that we can’t have nice things.
“That’s true. But often, federal regulators were going after small farmers as much as large farmers. ”
Perhaps you aren’t aware of something that has been happening in the Federal Government over the last couple of decades…..
In my agency, we had “special programs” for large corporations where we would “help” them follow our regulations if they got caught violating them. Now large corporations have all the money in the world to hire regulatory compliance experts – they don’t need the US Government giving them a “helping hand”, but the fact is, the US Government does. This was NOT true for small businesses who could not afford to hire regulatory compliance experts – they get minimal help if any, and in fact, we were expected to hammer them with the full extent of the law……..
That “initiative” started when I worked for EPA and the Reaganauts came to power. In the spring of 1980, after the Great Victory and the release of the Iran hostages, the Rulers dictated to us enforcement mopes that we were to stop sending in all these litigation referrals for significant enforcement of those pesky environmental laws. Hereafter, we were informed, we were now a “customer service provider,” and “industry” was our customer. All about assisting “regulatory compliance,” and all kinds of policies and guidance documents on how to “mitigate penalties” and frame their reporting to avoid liabilities. At that time, the laws still allowed “citizen suits” on a kind of private-attorney-general basis, against corps that were illegally discharging and emitting and all that, to collect penalties for violations of permit conditions that we enforcement and compliance mopes had to force corps to get permits for and try to set actual technology-forcing and protective limits, against rising resistance.
And as to hammering the little guys, there was a provision of the FWPCA that required people and businesses who stored over 500 gallons of petroleum in above-ground storage tanks to have a registered engineer develop a “spill prevention, control and countermeasures” (SPCC) plan, and to build continuous impervious containment with de-watering devices that would trap any entrained spilled petroleum, that would stop any spill from reaching a surface water. The cost of compliance was anywhere from $3,000 (1977-8 dollars) for the farmer with the diesel tank, to $50,000 or more for larger facilities. The base penalty was $5,000 for the basic violation with aggravating factors for “recalcitrance” and stuff, and a very few mitigating factors. The enforcement policies and guidances were all stacke3d against the “little guy” who could not afford an attorney and generally could not even afford the engineer and construction needed to meet the requirements.
Generating these and similar “nuisance” cases became the largest stock of “enforcement actions” justifying the empire-building staff increases and upgrading of GS ratings for attorney positions at EPA offices. These actually led to a certain amount of corruption — one attorney, who had some kind of Chinaman protection that kept him from getting fired for inattention and incompetence was assigned a bunch of these, and then apparently was “settling” them the Chicago way.
“No matter how cynical you become, it’s never enough to keep up.”
“I know a farmer with a wet spot in his field and it probably would have been covered under the rule.”
Me too. I owned a farm in an east coast state. When I bought it, the state EPA rule stipulated a 50-foot buffer zone around creeks and wetlands, putting perhaps 20 percent of it off limits for building.
Twenty years on, the state EPA was discussing amping it up to a 150-foot buffer zone, making large parts of the farm unbuildable, despite it having over a hundred acres. Then Obama’s federal EPA proposed extending its jurisdiction out to 1,500 feet … which would have put my entire farm under the tender mercies of their regulatory whims. Readers, I bailed.
It would be one thing if they were willing to PAY for these regulatory takings. But they aren’t — not a penny.
An adjacent 6-acre tract (larger than the 5-acre minimum zoning) afflicted with the tragedy of a “babbling brook” running through it was completely unbuildable because of buffer zones and the cost of permitting a creek crossing. The “owner” might as well as just walk away and let the state seize it — it’s worthless.
For environmental justice to be done, some smallholders must be crushed under its wheels. :-)
Having seen the research on the subject and working for an organization that encourages farmers to install riparian buffers, I can say that anyone who is against stream buffers is simply foolish and has not thought the idea through. That buffer serves several purposes, it captures pesticides (absorbed into vegetation) nutrients (chemical and manure-again absorbed into vegetation) and provides shade to the watercourse, which slows down algal growth and makes the water more hospitable to freshwater organisms (you know, fish). It makes the water we all drink cleaner and safer. My state is pretty serious about buffers, and I am unaware of any state that makes them mandatory, furthermore, it is patently untrue that there is no compensation available to farmers (or any landowner) who is willing to install a stream buffer. The Conservation Reserve Enhancement Program (CREP) available through the Farm Service Agency pays for fencing, tree planting, alternative water access for livestock, stream crossing, as well as signing bonuses and easement rent for 15 years (which is then renewable) based upon the type of buffer and soil type for buffers a minimum of 50 feet wide up to a maximum of 180 feet. My guess is that many people have seen CREP easements, as they are frequently seen along streams as unmowed fields covered in tubes to protect the young trees. The majority of long term landowners and farmers tend to see stream buffers as responsible stewardship. Real estate developers, who only own the land a short time and then move along with a handful of cash see things differently of course.
But… but… all that regulation interferes with PROPERTY RIGHTS!
Here in FL we have a large damaging extraction industry that digs fertilizer minerals (limestone) out of the ground and leaves large messes and occasional disasters. One company wanting to expand its areas of damage bought a piece of lootable land with mineral rights, even though they knew damn well that there was a protected wetland right on a small fraction of it – a wetland that like many others recharges the Floridan aquifer that feeds water to most of the state, and does all the other stuff you mention.
The purchase was in part, as I recall, to buy standing to litigate the notion that regulations like those protecting “public goods” like wetlands constitute a “taking” and under the state and federal constitution would require the public to pay the looting company the profit it would have made extracting the minerals and damaging the landscape and watersheds, absent such regulation. http://www.leagle.com/decision/19861684791F2d893_11506/FLORIDAROCKINDUSTRIES,INC.v.UNITEDSTATES, and here’s a more recent gloss on the case and the principle that also assumes that the right to loot and pollute is a higher right than the ‘general welfare:’ http://www.congressionalresearch.com/RL30423/document.php?study=WETLANDS+REGULATION+AND+THE+LAW+OF+PROPERTY+RIGHTS+TAKINGS
Haygood missed his opportunity for a nice payday out of that “regulation” of that piece of land he bought. I’m sure some conservative lawyer would have been happy to litigate a takings claim for him… Or he could at least have taken a nice tax deduction for gifting the land to the Nature Conservancy or similar organization…
“Pay the looting company the profit it would have made, but for the effects of regulation even in, especially in, the public interest.” Sounds like the noises that keep emitting from the mouth of the supposedly dead TPP and other “ISDS” monsters… There’s no fire hot enough to kill it with…
“Rights are whatever people and the institutions they control care to enforce.”
Yeah, I’ve seen plenty of research. I’ve also seen the environmental damage caused by regulators so enamored of research that they mindlessly follow regs created by people who don’t have to live with their rules. You want a decrease in pesticides and fertilizer in the water? Start going after golf courses, landscaping companies, and individual homeowners; have you been in a Lowes lately and seen the mountains of chem they shove out the door with no restrictions on use?
And your vaunted easements and payments? You live in a fantasy. I’ll tell you what the state said to us when we proposed that they help maintain the pothole or pay to help maintain it because it was overrun with noxious weeds blown over from the adjacent BLM land which the Feds refuse to maintain (and which we were not allowed to spray because it was a wetland): “Why should we do that when we can just force you to do it on your own?” So chalk up another small farm sold to a big company.
Profits over people.
Don’t have to wonder if you’re violating regulations when there aren’t any.
As long as they are controlled by Republicans.
The NPR article you referenced states,
Is “too far” the same as “rollback”?
Like many of the Obama rules, it has a great title for the identity crowd and lots of confusion,
and it must have exemptions,
which creates even more confusion,
But at the end of the day, it was all about the messaging,
More lipstick for this pig please