U.S. Army Corps of Engineers and Environmental Protection Agency proposed last week the third updated definition of “waters of America” over the past six-years. The Biden Administration takes a more modest, conservative approach than the Obama Administration. It does very little to define federal regulatory authority as per the Clean Water Act. Maybe with an eye towards possible review by the Supreme Court.
The new EPA/Army Corps proposal rule is basically a modification of the regulatory definition from pre-2015 that aims to take into account the Supreme Court decisions. SWANCC v. U.S. Army CorpsAnd Rapanos v. United States. The rule could (and probably should) have been issued long before the EPA and Army Corps. The rule will also be much less likely to face legal challenges than is the Obama Administration’s WOTUS Rule (or its successor).
It is the replacement of the Commerce Clause’s vague invocation by federal regulator authority in pre-2015 regulations with language that references the jurisdictional test proposed Justices Kennedy and Scalia. This will make the regulation the most significant. Rapanos. In other words, the EPA/Army Corps seems more interested in providing regulatory certainty to their regulations and aligning them with relevant judicial opinions rather than asserting maximum regulatory authority.
The rule that was in force before 2015, and had existed since the middle of 1980s, gave federal regulatory authority over all waters.
affecting interstate or international commerce.” This broad assertion of jurisdiction was beyond the reach of federal commerce power, which demands “substantial Effects” and not just effects (let alone possible or speculative ones), and it had been rejected. SWANCC And Rapanos. New rule rejects the expansive form and follows the Supreme Court’s guidance on the interpretation of the CWA.
This new rule’s greatest legal weakness is its dependence on Justice Kennedy. Rapanos concurrence. Although this opinion defines federal CWA jurisdiction’s outer limits at the moment it is not clear if the Supreme Court will adopt a broad definition of federal regulatory authority. Three of the current justices (Roberts, Alito & Thomas) signed on to Justice Scalia’s more narrow plurality, and Justice Kavanaugh seemed to endorse the Scalia approach in his Maui v. Hawaii Wildlife Federation concurrence. Justice Gorsuch also held a narrow view of federal regulatory jurisdiction. Maui. Justice Barrett may not be inclined to follow the CWA’s mentor approach, but there could be five votes that would make Justice Scalia’s plurality law.
It is convenient that the proposed rule be published at the right time for the Department of Justice. The Department of Justice will shortly file a brief opposing certiorari. Sackett I have written about the case here. Pacific Legal Foundation represented the Sacketts. They are asking for the Court’s reconsideration of CWA jurisdiction in order to accept the Scalia. Rapanos plurality. The strongest argument for this is that there’s still uncertainty about federal regulatory jurisdiction. This uncertainty has swirled over the past 15 years, and it hasn’t been helped by Obama and Trump Administration efforts to redefine the waters in radical new ways.
The federal government now has the ability to argue, with the new proposal, that the EPA/Army Corps are currently in the process of adopting a rule that will increase regulatory uncertainty. It also ensures that each agency adopts sufficiently narrow assertions regarding regulatory authority that they can satisfy the courts. DOJ may also claim that the Supreme Court should not review CWA jurisdiction and must wait for the finalization. However, the Supreme Court did not reject similar arguments. Therefore, we’ll have to wait and see if they find the arguments convincing.