December 6, 2021

Volume XI, Number 340

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December 03, 2021

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Baby Steps Toward a New WOTUS Rule

In What About Bob, a movie worth seeing only if you, like me, think every film including Bill Murray is worth seeing, the fictional guru Dr. Leo Marvin wrote a book called "Baby Steps."  The theme of "Baby Steps" is that no challenge is too great if you take "baby steps" on your path to overcoming it.

From comments by senior Biden administration officials reported yesterday, it seems as if EPA and the Army Corps of Engineers are following Dr. Marvin's advice in their perhaps quixotic attempt to arrive at a "durable" regulatory definition of "Waters of the United States" which would end the longest running controversy in environmental law.

Yesterday the Senior Director for Water at the White House Council on Environmental Quality said that the EPA/Army Corps of Engineers rule currently being reviewed by the White House Office of Management and Budget is "foundational" and "more skeletal" that the "durable" rule that might ultimately come to pass.

That makes sense since, based on the failed attempts of the last two Presidential Administrations to come up with a "durable" Waters of the United States regulation, it is highly unlikely that EPA and the Corps will arrive at such a "durable" definition on their own.

But now I'm wondering how the Office of Management and Budget fulfills its responsibilities under the 1993 Executive Order that requires it to review all proposed regulations if what it is reviewing is only "skeletal"?  OMB's role under that Executive Order is to ensure that proposed regulations are consistent with applicable law, the President's priorities, and several good government principles specified in the Executive Order.  It would seem that there needs to be some meat on the bone for OMB to do that.

Unless, of course, the "foundational" rule is doing nothing more than formally repealing the Trump Administration regulations that EPA has already said it will not follow anyway, and reiterating the Administration's intention to act as if the Obama Administration's and Trump Administration's regulations were never promulgated while the Biden Administration takes its own likely years long turn at the plate.  It looks as if we'll know more around Thanksgiving how big a step EPA is taking now.  

"The rule EPA and the Army Corps of Engineers sent to the Office of Management and Budget Oct. 12 is a “foundational” rule, Sara Gonzalez-Rothi, senior director for water at the White House Council on Environmental Quality, told the American Bar Association’s (ABA) Section of Environment, Energy, and Resources Fall Conference Oct 14. And this rule, which could be proposed by Nov. 30, will likely be “more skeletal than what you may see further on,” she said.

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XI, Number 288
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About this Author

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

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.

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