Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Advanced Search Go
Free Newsletter Sign Up

Trump Waters Rule to Hit Major Problems in Court, Ex-Feds Say

Jan. 27, 2020, 11:06 AM

Former federal regulators say there’s a clear path for opponents of the Trump administration’s new water pollution rule to get a court to throw it out.

The Trump administration’s new rule contains very little scientific justification for why the change from the Obama rule needed to be made, and in some cases it blatantly disregards prior court rulings on this issue, according to veteran environmental regulators.

“The biggest problem they’ve got is that there’s no court of appeal in the country that has this interpretation of the Clean Water Act,” said Mark A. Ryan, a former EPA attorney for 24 years.

The new policy was unveiled Jan. 23 to replace an earlier Obama administration one known as WOTUS, or Waters of the United States. It redefines which bodies of water are covered by federal anti-pollution laws and which aren’t.

The new definition of federally protected water bodies is far narrower than the Obama administration’s version, as it excludes isolated wetlands and ephemeral streams that only flow after a heavy rainfall.

The WOTUS policy “is informed by science,” EPA spokesman Michael Abboud said, “but science cannot dictate where to draw the line between federal and state or tribal waters, as those are legal distinctions.”

Scientific Justification?

Legal challenges to the new WOTUS policy will likely come almost immediately after the policy is published in the Federal Register, which could happen within days.

Ryan, now with his Washington state-based firm Ryan & Kuehler PLLC, was one of the authors of an earlier effort to rewrite the country’s WOTUS policy during the Obama administration. While some courts deemed that earlier policy, put forth in 2015, unlawful, it did come with voluminous scientific justification.

Ryan said the Trump administration will have to demonstrate to a judge why the science that backed the Obama administration’s much broader definition of a water body is wrong. “They have to give a rational basis for what they’re doing,” he said.

EPA Administrator Andrew Wheeler indicated that the Trump administration is prepared to make this exact argument. Data developed during the Obama administration “can’t be used to determine Clean Water Act jurisdiction now or ever,” Wheeler said. “Any other assertions are inaccurate.”

But Kevin S. Minoli, a partner at the firm Alston & Bird LLP who spent years in the EPA’s Office of General Counsel, said the argument that no credible data exists on this issue may backfire.

“That’s a hard thing for them to be able to say in court, especially when you have third parties that are able to provide some information,” he said. “It will be difficult for the agency to defend.”

Science Advisers

That’s especially the case after a panel of scientists assembled by the EPA itself said the new policy (RIN: 2040–AF75) is hard to justify from a scientific standpoint.

The new water body definition “decreases protection for our Nation’s waters and does not provide a scientific basis in support,” according to a letter the agency’s Scientific Advisory Board approved on Jan. 24. This panel is responsible for providing nonbinding scientific advice on the agency’s policy moves.

But while this advice is nonbinding and, given the timing of the announcement on Jan. 23, can’t influence the shape of the final policy, it can be used by environmentalists as ammunition in any upcoming legal fights they may wage against the administration.

And, in fact, one of those lawsuits may be filed by Gina McCarthy, the former administrator of the EPA who now leads the Natural Resources Defense Council.

“We will do all we can to fight this attack on clean water,” she said in a statement. “We will not let it stand.”

Attorneys at the Department of Justice, who are responsible for defending the actions of federal agencies like the EPA and the Army Corps, should begin now working with the officials who may soon be their clients in these suits, Larry Liebesman, who worked on environmental issues at DOJ during the Carter and Reagan administrations, said.

“An agency can change its mind. It’s not unusual,” Liebesman, now a senior adviser at water resources consulting firm Dawson & Associates, said. “But they have to come up with a reasoned explanation.”

Kennedy Test

The new policy also could run into trouble because it rejects the so-called Kennedy test, developed by former Supreme Court Justice Anthony Kennedy. He wrote in a landmark 2006 opinion that the agencies should deem a marginal water body federally protected if there is a “significant nexus” between it and another larger body of water that is clearly protected.

Nearly every federal court in the land has adopted this test as the definitive way to determine whether a water body can be regulated, but some have argued the time is right to try this issue before a court with several new justices on it.

Ken Kopocis, the former head of the EPA’s water office during the Obama administration, said the agency’s rejection of the Kennedy test indicates the Trump administration thinks it can win at the highest court in the land.

“They’re relying on a conservative court to give them the ability to do whatever they want,” Kopocis, now a law professor at American University, said.

Abboud said prior Supreme Court rulings will vindicate the Trump administration on this issue. “The final rule is primarily guided by the statutory authority delegated by Congress under the Clean Water Act and the legal precedent set by key Supreme Court cases,” he said.

To contact the reporter on this story: David Schultz in Washington at

To contact the editor responsible for this story: Gregory Henderson at