Monthly Archives: August 2017

Ditching checks and balances on the Clean Water Act rule

The House of Representatives Appropriations Committee has approved a funding bill that would allow the Environmental Protection Agency to withdraw an existing Clean Water Act rule “without regard to any provision of statute or regulation that establishes a requirement for such withdrawal.”  This rule, known as Waters of the United States or WOTUS, was adopted by the Obama Administration EPA to clarify which waters are subject to Clean Water Act jurisdiction.  The House Appropriations Bill is extraordinary, because if approved it would allow the Trump EPA to eliminate this rule without going through the usually required process, including public comment on the EPA’s proposal.

Let’s back up a step.  Like many agencies, EPA has the authority to write rules that carry the force of law, because Congress provided that authority.  Long before EPA was ever created, however, Congress set up some basic requirements that agencies ordinarily must follow in adopting rules.  These requirements include publishing notice of a proposed rule, and giving the public an opportunity to comment on it before it becomes law.  Congress set up this requirement in the Administrative Procedure Act or APA, and it has stood pretty much unchanged since 1946.  Not only does the APA give the public a voice in agency rulemaking decisions, it also provides for judicial review of agency actions, ensuring that citizens can challenge agency decisions that harm their interests.

Under the APA, an agency that seeks to eliminate a rule must follow the same process as if it were making a new one, which includes notice and comment.  And when it makes its decision, the agency must provide a reasoned explanation for its choice that makes sense in light of all the information that the agency considered in adopting (or eliminating) the rule.  This means that before the Trump EPA could kill the Obama EPA’s rule on Clean Water Act jurisdiction, the agency would have to publish a proposal, take public comment (normally for at least 60 days), and then provide a reasoned explanation for why today’s EPA sees the issue so differently than yesterday’s EPA did.  The House Appropriations bill would mean the agency can skip the process and just kill the rule.

Why does this matter?  Not just because the rule is so important for water quality, and for many industries (including agriculture) that want to limit federal involvement in their activities.  There is a bigger issue here about the steps we expect (require) agencies to take before they make law.  These steps force agencies to spend time and money on rulemaking procedures; public involvement can be messy and slow, but it is a time-honored requirement so that the public has a chance to be heard.  By the same token, judicial review of agency action is an important check to make sure that an agency’s actions are grounded in law and not, in the APA’s words, “arbitrary” or “capricious.”

Killing this rule has been a top priority of the Trump Administration and most Republicans in Congress.  In their view, the WOTUS rule was a regulatory overreach by an out-of-control Obama EPA, and we need to get rid of it fast.  But the rule is already being challenged in court, and frankly, Congress created this problem (back in 1972) by using a term as vague as “Waters of the United States” to define the scope of the Clean Water Act.  Congress, of course, could clarify the law itself … but if it leaves the job to EPA, the agency should have to accept public comment and explain its decision.  You don’t have to like the WOTUS rule to believe in checks and balances on agency action.

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