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Sir Winston Churchill famously said “those that fail to
learn from history are doomed to repeat it.” Of course he
didn’t have the nearly four decade long controversy over the
reach of the Federal Clean Water Act in mind but the shoe certainly
fits so I was amused by a Bloomberg Environment and Energy
report today on the several lawsuits that have been filed
challenging EPA’s eighth attempt to end the longest running
controversy in environmental law.
We have seen this movie at least twice before so there should be
no doubt about what happens next.
The undeniable fact of the matter is that the current EPA
attempt is sufficiently similar to the sixth attempt during the
Obama Administration that it was certain to face the slings and
arrows it is now facing. That sixth attempt was also challenged in
the courts, with similar claims made about how it went beyond what
was authorized by the Clean Water Act. The ensuing litigation
dragged on long enough that the Trump Administration EPA could
replace the sixth attempt with the much different seventh attempt
which was also challenged in the courts and ultimately replaced
with this eighth attempt.
Along the way it has been settled that such challenges to
EPA’s attempts to determine the reach of the Clean Water Act
have to begin in the District Courts, which necessarily means more
litigation steps and more time spent before any litigation is
finally resolved. We’ve also seen that members of the Judicial
Branch of all stripes are comfortable enjoining the Executive
Branch in the meantime as Professor Johnston points out in the
Bloomberg piece.
Professor Percival points out that the many states and NGOs
challenging the current EPA attempt “have been forum
shopping.” That’s also undeniable. But one would have to
have a pretty short memory to forget that challenges to the Trump
Administration rule were filed in California and Massachusetts,
most certainly for exactly the same reason.
The only thing that has certainly changed since the Obama
Administration regulation was challenged is the make up of the
nation’s highest court. Will five Justices of the Roberts Court
drive a stake through the heart of the “significant
nexus” basis for establishing Clean Water Act jurisdiction in
the current EPA regulation? After all, three of the current members
of the Court opposed the notion when then Justice Kennedy offered
it and they’ve been joined by three new Conservative Justices.
We’ll know the answer to that question when the Court releases
its opinion in Sackett any day now. I continue to think
that’s more likely than not but by no means certain. The Court
could also put answering that question off based on a conclusion
that the Sacketts’ lot is adjacent enough to a Water of the
United States so as not to implicate the “significant
nexus” notion endorsed by the Ninth Circuit Court of Appeals.
But if the Supreme Court does pull the plug on “significant
nexus”, EPA will most certainly be sent back to the drawing
board.
Which leaves me with this question for the experts. The Clean
Water Act and the Clean Air Act are about the same age. Congress
and the President most recently refreshed the Clean Air Act for the
second time almost twenty five years ago, including to account for
things known then that weren’t known in the 1970s. Why has the
Clean Water Act not gotten the same attention which it richly
deserves. Until that happens, history will continue to repeat
itself.
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