Tuesday, August 25, 2015

EPA Clean Water Rule Horse Race Shapes Up

The EPA's much-maligned Clean Water Rule goes into effect on August 28, 2015.  The rule is a serious (if arbitrary and aggressive) attempt to clarify what water bodies fall under Clean Water Act protection.  In practice, it may matter little, as the EPA approves between 96%-99% of all completed applications to fill in, divert, and pipe streams and wetlands every year.

But for the moment, an interesting horse race has developed.  Over 40 individual federal lawsuits have been filed, or parties added to existing lawsuits to stop this Rule from going into effect.  Unlikely litigative bedfellows include the US Farm Bureau and the Waterkeeper Alliance.

On the inside track, Hon. Ralph Erickson heard from a representative of 13 states attorney generals, asking for an injunction to stop the Rule from going into effect.  Judge Erickson apparently took several hours of testimony under consideration.

On the middle track, Hon. Lisa Wood heard from representatives of another 11 states attorney generals, promising a ruling (a possible injunction) prior to August 28th.

On the outer track, a much smaller case, a West Virginia coal company (Murray Energy) spent time in a federal courthouse last week, arguing that the carte-blanche exemptions that their industry received in the purportedly science-based Clean Water Rule..........are not big enough exemptions.

Numerous other federal lawsuits are pending, but these requests for federal injunction (should any injunction be awarded) should be fairly telling.   Look for the following to happen:

1) At least one of these judges will award a federal injunction against the Clean Water Rule by August 28th.  The injunction will be upheld in appeal.

2) The judge's ruling will request that EPA re-enter the rule-making process and likely re-start the public input process.

3)  EPA will be prepared to automatically launch a new (and brief) public input process and will be guarding against making significant changes to the rule.

4) Around the time the EPA Clean Water Rule is re-released in early 2016, the remaining federal lawsuits will likely become active, forming the basis for another injunction against the Rule's roll-out.

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