By Juan Bacigalupi
In the early 1970s, the nation went on a bit of an environmental kick. During that time, Congress passed several environmental laws, including the Clean Air Act (CAA) and Clean Water Act (CWA). These laws were based on the idea of cooperative federalism, meaning the federal government was meant to work with the states to enforce these laws.
In practice, state-developed programs are designed to be consistent with the standards set forth in environmental laws and are then submitted to the Environmental Protection Agency (EPA) for approval. Such programs include the State Implementation Plans (SIPs) under the CAA and implementation of the National Pollution Discharge Elimination System (NPDES) permitting scheme under the CWA. Enforcement was meant to be carried out largely by the states, with the EPA retaining oversight authority and the ability to step in and carry out enforcement actions if the states don’t take action.
The current EPA has made it clear that their view of the federal government’s role in this process is to get out of the way of the individual states. Accordingly, they've taken a large step back from enforcement, including rolling back national rulemaking initiatives implemented by the previous administration. In particular, two such roll backs have garnered a great deal of media attention: the Clean Power Plant Rule and the Waters of the United States (WOTUS) Rule.
The Clean Power Plant rule was an Obama-era approach to limiting the amount of carbon emissions by power plants. The concern here, of course, was that the United States needed to limit human contribution to climate change. The EPA has moved to rescind this rule in part because they see no statutory directive to regulate carbon emissions. The problem here is that in 2007, the Supreme Court ruled in Massachusetts v. EPA that the agency must make a determination on whether carbon is a harmful pollutant. This led to a 2009 “endangerment” finding by the EPA that carbon emissions could endanger human health. This triggered a duty by the EPA to regulate carbon emissions. However, environmental groups and some state attorneys general now argue that by rescinding the Clean Power Plant rule, the EPA is violating its duty to regulate carbon emissions.
According to the EPA, the WOTUS Rule, which defines the limit of federal authority, is another example of regulatory overreach. Under the CWA, the government has authority to regulate the ‘waters of United States,’ a term that isn’t defined in the statute and that has been the subject of considerable litigation. The Supreme Court in Rapanos v. U.S. issued a plurality decision when a majority of Justices couldn’t agree on a definition. The EPA under former President Obama sought to define it consistent with Justice Kennedy’s more expansive definition, which included waters with a ‘significant nexus.’ This definition could include minor wetlands with a hydrological connection to a more permanent waterbody. This rule was challenged and its implementation was suspended by the Supreme Court so that the lower courts had time to rule on the merits of the case. The current EPA is in the process of rescinding that rule, the first step in a two-step process that will eventually involve the issuance of a new rule. Consistent with recent executive orders, the new WOTUS rule will likely be more consistent with Justice Scalia’s narrower opinion in Rapanos, which rejected the significant nexus test and focused more on waters with a ‘relatively permanent flow.’ The rescission and eventual implementation of the new rule will almost certainly also get challenged in the courts.
This creates uncertainty on two fronts. First, the challenges being made by various states and environmental groups raise a question on whether the current EPA’s approach will actually hold up or whether it will be forced by the courts to take a more active role. The second problem is that while some states simply mirror the federal requirements, other states and even some cities actively pursue more stringent standards, particularly in the face of the EPA’s current hands-off approach which creates differences from one state to the next.