Thursday, November 5, 2015

The Clean Water Rule Is On the Ropes

If you're engaged in American habitat conservation and you're not closely following USEPA's proposed "Clean Water Rule," formerly known as the "New Rule for Waters of the US," then you should tune in to some rather fascinating legislating and litigating that will set the tone of wetland and waterway conservation for the next decade or more.

And that possibility is what's made me nervous about CWR since its draft.  As I wrote on this blog over a year ago, 

"the application of the New Rule is likely to result in ineffective and arbitrary application of regulatory policy, federal policies that cannot survive litigative challenges..." (here)

A year later, I'm one of the few practitioners not surprised by the fact that 31 states (and dozens of other organizations on the right and the left) have sued to stop the Clean Water Rule, and that the Sixth Federal Circuit has written, in issuing a nationwide stay on CWR's implementation, that the lawsuit against CWR has a "substantial possibility of success on the merits of their claims," and that CWR is "facially suspect."  We're already expecting a Supreme Court hearing of the merits in 2016. 

It also appears that I'm one of the few practitioners not surprised by the fact that our Tea Party-dominated Congress has drafted a few binders full of legislation designed not only to block the Clean Water Rule, but - get this - to also gut the existing, conventional provisions of the Clean Water Act - just as I've warned lobbyists and regulators alike would be the direct reaction to CWR.   I came across this current piece from the Natural Resources Defense Council - a strong advocate of the Clean Water Rule:

if all that weren't bad enough, it gets worse. Under Senate procedures, if 60 or more Senators vote for the Senate to "proceed" to the bill (which is the action technically to be considered on Tuesday), the entire Clean Water Act is fair game for amendment and attack. That would allow opponents of Clean Water Protection to put forward measures that would repeal the Act's protections against pesticide pollution, as one bill proposes to do; or curtail EPA's authority to stop enormously destructive dumping projects, as another bill would do; or so dramatically roll back the law's coverage that it's barely a law anymore, as yet another Senate bill would do. (here)

To which I respond, "You don't say." And to think, Justice Alito hasn't even gotten his hands on it yet.  In years to come, we'll wish this one had been handled a little better by our pals at USEPA.

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