November 27, 2022

Volume XII, Number 331


Another Judge Who Couldn't Care Less What EPA Thinks -- Will the Chaos Created In Arizona Spread?

News this morning that an Arizona Federal District Court Judge has done what many of us expected would happen eventually -- purport to strike down the Trump Administration's regulation establishing the reach of the Federal Clean Water Act over the objection of the Environmental Protection Agency.

As many of you know, the Biden Administration EPA has said it intends to repeal and replace the Trump Administration regulation just as the Trump Administration EPA repealed and replaced the Obama Administration regulation establishing a much different reach of the Clean Water Act.  Not content to wait to see what EPA will do, litigants around the country have pressed Federal Judges to take the law into their own hands.  Until yesterday those judges exercised judicial restraint, leaving the application of the Clean Water Act to the agency charged by Congress with administering it.

The Arizona Judge said she is constrained to find the Trump Administration's regulation inconsistent with the Ninth Circuit's interpretation of the Clean Water Act and, for that reason, she has no choice but to vacate the regulation instead of doing what EPA asked.

Lara Beaven, of Inside EPA, reports that "legal experts disagree on whether a district court can vacate a rule nationally."  Anyone who thinks this decision might apply nationwide need only look to what happened as a result of litigation over the Obama Administration regulation.  At the time it was repealed, it was the law in half of the States while the prior "policy" was the law in the other half of the states.   

And what exactly is that policy?  The last EPA "policy" prior to the Obama Administration regulation was a manual written in 1989 before the Supreme Court's 2006 decisions in Rapanos, including Justice Scalia's plurality opinion which is the basis of the Trump Administration regulation, and Justice Kennedy's opinion which is now the law in the Ninth Circuit even though it did not receive the support of a majority of the Supreme Court, let alone EPA.

I guess that means that in Arizona for now  the "policy"  is what Justice Kennedy said was the reach of the Clean Water Act fifteen years ago before EPA implemented not one but two sets of regulations.  No one could possibly think that Congress intended one Supreme Court Justice to have this role. Hopefully the Ninth Circuit will correct this mistake and other District Court Judges won't follow suit.  In the meantime, one might hope Congress would act to resolve the longest running dispute in environmental law so that we might, once and for all, have a consensus on the reach of the Clean Water Act.

"The decision means the test for WOTUS will revert to the policy that predated the Obama administration’s 2015 Clean Water Rule. However, legal experts disagree on whether a district court can vacate a rule nationally, meaning the pre-2015 test might apply only on a narrower scale, such as on land controlled by the six plaintiff tribes."


©1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XI, Number 243

About this Author

Jeffrey R. Porter, Environmental Attorney, Mintz Levin, Risk Analysis Lawyer

Jeff leads the firm’s Environmental Law Practice. He is also a member of the firm’s Policy Committee. For 23 years, he has advised clients regarding complex environmental regulatory compliance and permitting issues, including issues relating to air and water discharges and hazardous waste storage and disposal. In 2011 and 2012, the firm received the Acquisition International Legal Award for “US Environmental Law Firm of the Year.” The awards celebrate excellence and reward firms, teams and individuals for their contribution to client service, innovation and commitment to quality.