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The Insider

Imminent Release Of CWA Jurisdiction Rule Tees Up Renewed Legal Fight

The Trump administration is preparing to unveil its highly-anticipated proposal to narrow the scope of Clean Water Act (CWA) jurisdiction next week, and all sides in the long-running fight over the law's reach are bracing for that legal struggle to intensify.

While details of the joint rule from EPA and the Army Corps of Engineers are still unclear, leaked talking points point to a standard in line with the late Justice Antonin Scalia's preferred test for jurisdiction, which takes a narrow view of the law's reach. Environmentalists and Democratic states have long argued that Scalia's approach is in conflict with the water law's text, and unlawful to apply because it was a minority view on the Supreme Court.

They prefer a more expansive test set by the former Justice Anthony Kennedy, which formed the basis of the Obama administration's jurisdiction rule that Republicans and industry say was unlawfully broad.

Public comments and lawsuits over the Trump CWA proposal -- once the administration finalizes it -- are sure to raise those arguments along with others, but any court challenges along those lines will only add to the already-sprawling array of CWA jurisdiction litigation.

That network of suits includes still-pending challenges to the Obama-era standard now being targeted for replacement, environmentalists' and Democratic states' cases targeting the Trump administration's delay of that 2015 rule, and any future bids to overturn the proposed repeal of the current policy, which will be finalized separately from any new regulation on the CWA's reach.

EPA and the Corps have reportedly set the proposal's release for the morning of Dec. 11, though no formal announcement has been made:

EPA Eyes Dec. 11 For Proposal Narrowing Obama CWA Jurisdiction Policy
EPA and the Army Corps of Engineers are planning to unveil their proposed rule to narrow the Obama-era Clean Water Act (CWA) jurisdiction standard at a Dec. 11 EPA headquarters event, says an informed source, marking a long-awaited step that will set the terms for the next round of litigation over the proper scope of the water law.

That event will kick off a rulemaking process slated to run through September 2019, which is when the current Unified Agenda says a final rule is scheduled.

Once the agencies take final action, a court challenge is all but assured, given critics' long-standing attacks not only on the Scalia CWA test but also what they see as the Trump administration's cursory approach to endangered species and National Environmental Policy Act reviews:

CBD Warns OMB Of Suit If CWA Rule Sidesteps Doubts On NEPA, Species
The Center for Biological Diversity (CBD) at a recent meeting with Trump administration officials urged a full review of the environmental and endangered species impacts of its long-awaited Clean Water Act (CWA) jurisdiction standard, and warned the group will sue if -- as appears likely -- regulators ignore those requests in the pending rule.

But even before final action on the new standard, litigation over the CWA rule is only likely to grow, especially since the current policy has been turned into a state-by-state patchwork by dueling district court decisions:

Second Ruling Scrapping CWA Rule Delay Solidifies Regulatory Patchwork
A second federal district judge has ruled that EPA's delay of the Obama-era Clean Water Act (CWA) jurisdiction rule was unlawful and scraps the Trump administration's order blocking the rule's enforcement nationwide, solidifying a regulatory patchwork on the CWA's reach as various court decisions have now revived the rule in 22 states.

Two judges have separately held that EPA and the Corps broke the Administrative Procedure Act when they delayed enforcement of the Obama-era CWA standard to 2020 -- and issued orders that brought the prior administration's policy back into force. But only 22 states are now subject to that rule thanks of a trio of injunctions from courts hearing suits over the validity of the 2015 standard that blocked any implementation within the borders of 28 states.

And before the new standard takes effect, the Trump administration plans to enact its final repeal of the Obama-era rule. That withdrawal will provoke its own round of court challenges as the same groups planning to sue over the replacement rule have already charged that the repeal is flawed and ignores material facts:

'Supplemental' CWA Rule Repeal Draws Attacks Over Factual, Legal Basis
Opponents of EPA's plan to repeal the Obama-era Clean Water Act (CWA) jurisdiction rule are attacking the agency's “supplemental” proposal that aims to further justify the effort, arguing that there are major flaws in the factual and legal basis for the repeal and warning that undoing the existing policy will create regulatory uncertainty.

Meanwhile, the Supreme Court -- expected to have the last word on the lawfulness of any new CWA jurisdiction rule -- could end up deciding the issue even sooner if it takes up a pending petition where a criminal defendant is asking the justices to hold that Scalia's test is binding precedent regardless of which regulation is currently in place:

High Court Petition Could Set CWA Standard Ahead Of Lawsuits, EPA Rule
A just-filed Supreme Court petition could provide a vehicle for the justices to set a new standard on the Clean Water Act's (CWA) scope or even strike down a notoriously vague provision that governs federal jurisdiction under the law, which could end a “thicket” of litigation on the issue and short-circuit EPA's rule to clarify the law's reach.

The Department of Justice (DOJ) is due to file its brief opposing review in Joseph Robertson v. United States on Dec. 10, immediately before the proposal's slated release. DOJ will likely urge the court to hold off on addressing CWA jurisdiction until EPA and the Corps have had their say.

But regardless of whether the justices agree, an already-complex battle over the CWA's reach is certain to become even more convoluted over the coming months.