October 05, 2020

The Back Page: An Unwinnable Battle

Mark Ryan

We’re in the 2020 equivalent of trench warfare. The prize is the “Waters of the United States” (WOTUS) rule, and the battlefield is the courts. After six years of fighting over the WOTUS rule, we’re no closer to resolution than we were in 2015, when the Obama administration promulgated the rule and took the first shot at clearing up the confusion created by the Supreme Court’s SWANCC (2001) and Rapanos (2007) decisions. Determining whether something qualifies as a WOTUS is one of the fundamental elements of establishing Clean Water Act (CWA) jurisdiction, and the statutory definition of the term hasn’t changed since the Act was passed in 1972. It is reasonable to assume that we would have figured out by now what is a WOTUS. But we haven’t.

The problems started with the above Supreme Court decisions that led to a 2015 Obama-era rulemaking that in turn started the current string of court cases. First, industry and agriculture groups and some red states sued over the 2015 rule. Then after Trump took office, enviro groups and some blue states went after the rules suspending and repealing the 2015 rule and just recently new suits have been filed challenging the 2020 rule that replaces the 2015 rule. The muddle was compounded by the Supreme Court’s ruling in National Assoc. of Manuf’s v. Dept. of Def., 138 S. Ct. 617 (2018), holding that challenges to the WOTUS rule must be brought in district courts under the Administrative Procedure Act instead of in the Circuit Courts under CWA section 509(b). As a result, instead of one case in the Sixth Circuit as we had in 2015, we now have scores of cases in district courts around the country, all challenging the same law. Forum shopping has been rampant.

Enormous resources are being devoted to this litigation. I’m aware of at least 27 reported WOTUS litigation decisions since 2015. There are now three active tracts of litigation in multiple federal district courts by scores of parties. And everyone is involved—many of the major environmental groups, at least one national property rights advocate, every trade organization one can imagine and, of course, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps). The Department of Justice has an entire team of lawyers assigned to this litigation, and many of the major law firms in the country are involved.

No one knows what the future holds because there is too much uncertainty surrounding this litigation and the future leadership of EPA. If Trump wins reelection, it is all likely headed back to SCOTUS, where Justice Kavanaugh recently telegraphed in Maui that he might support the plurality opinion from Rapanos. But will Roberts stick with his decision to support the Rapanos plurality? If Biden wins, his administration likely will attempt to roll back the 2020 rule in favor of one that is more protective of the environment. That will surely spawn another round of litigation by agriculture, property rights and industry groups that support the Trump administration’s restrictive version of WOTUS. And on and on it will go.

It’s time to end the madness. We deserve a WOTUS definition that reasonably protects the environment, and businesses, farmers, and landowners deserve to know what the law will be so they can plan. But the uncertainty will remain so long as Congress relies on EPA and the Corps to fix the statutory ambiguity through rulemaking. Congress needs to step in and fix the WOTUS definition. It made a run at it in 2008 with a bill that would have enshrined in the statute the EPA/Corps’ definition of WOTUS that had been in place for many years. But powerful lobbies opposed, and it died in committee.

It’s time to try again. Let’s come together, set aside the hyperbole and false narratives, debate the legitimate merits of economics, states’ rights, and environmental protection through the legislative process and reach agreement on a workable national standard. Then redirect those many millions of dollars we’re spending on attorneys to do something more fruitful (there are limitless options). Yes, I am aware how naïve this sounds. But we can do better. So I ask, Congress, are you listening?


Mark Ryan

Mr. Ryan is a member of the editorial board of Natural Resources & Environment, the author of the Clean Water Act blog, and is with the firm of Ryan & Kuehler PLLC in Winthrop, Washington. He may be reached at mr@ryankuehler.com.