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Environment and Land Use Partner Mary Lynn Coffee Quoted in Law360

07/12/2018 Law360

Mary Lynn Coffee was quoted in the Law360 article “3 Takeaways From The EPA’s Water Rule Rollback Notice.”  The article examines the recent legal analysis that was released by the EPA and the US Army Corps of Engineers on the rescission of an Obama-era rule that defined the federal government’s jurisdiction under the Clean Water Act.  In the article, Ms. Coffee commented that the initial rule proposed by the EPA and Army Corps to roll back the Obama-era rule and replace it with previous guidance that defined the term “water of the US” fell short in terms of providing a rational explanation in order to clear the Administrative Procedure Act’s “arbitrary and capricious” standard—which must be cleared in order to rescind an already-promulgated rule.  She stated that the supplementary notice issued by the EPA and Army Corps bolsters the current administration’s position and gives it a stronger foundation on which to face the inevitable legal challenges from environmental groups and others.  “The first proposed rule was very, very poorly done because it’s a rulemaking to rescind a rule, and they really didn’t put forward any justification,” Ms. Coffee said.  “I think they really needed this supplemental notice not just for clarification, but to strengthen the administrative record.”  She added that the agencies clearly “did their homework” with the supplemental notice and provided a much more thorough legal analysis about why they believe the Clean Water Rule should be rescinded. 

Additionally, Ms. Coffee commented that Justice Kennedy’s absence will impact the proposed replacement rule—as any rule must be written with the expectation that the US Supreme Court will review it.  “I think it will be much closer to a plurality type of reading of ‘significant nexus’ than if Kennedy remained on the court,” she said.  “And I think it actually emboldens people to bring the case before the court without Kennedy there.  He really had the swing vote position staked out on environmental issues.”

The full article can be read here (Paid Subscription Required).

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