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Executive Orders Expected this Week Regarding Clean Air and Water Act Rules

By: John Anderson, Paul S. Weiland
02/22/17

In addition to a January 20th Presidential Memorandum freezing all, not yet enacted, rules and sending them back to the agencies and Office of Management and Budget for reconsideration, and the utilization of the Congressional Review Act by Congress to “disapprove” rules enacted within the last 160 days of the 114th Congress, the Trump Administration recently indicated it would be pursuing Executive Orders designed to roll back two signature Obama-era climate and water policies.  According to reporting, the first of these orders will focus on “reducing U.S. dependence on foreign energy” by rolling back the greenhouse gas restrictions outlined in the U.S. Environmental Protection Agency’s (EPA) “Clean Power Plan”, whereby the EPA uses its authority, under Section 111(d) of the Clean Air Act, to “issue standards, regulations or guidelines that address carbon pollution” from existing power plants, and instructing the Department of Interior’s Bureau of Land Management (BLM) to lift a 2015 moratorium on coal leasing on federal lands.  

The second order will apparently instruct the EPA and Army Corps of Engineers to rewrite the Clean Water (or Waters of the United States (WOTUS)) Rule.  The WOTUS Rule was developed, in part, in response to two landmark Supreme Court decisions rendered in 2001 and 2006, which created uncertainty over exactly which wetlands and watercourses fell under the federal government's 1972 Clean Water Act jurisdiction.  While EPA worked for a number of years on draft regulations in response to the Supreme Court decisions, beginning in the George W. Bush administration, ultimately, the Obama Administration finalized the WOTUS Rule in December 2015.  The current rule gives the federal government authority over an estimated 60 percent of the wetlands and watercourses in the country, including intermittent and perennial features without regular flow, and was developed based on the premise that upland development activities could pollute the smaller and/or intermittent waterbodies that flow into major ones, and thus necessitated the need to grant regulatory authority over those activities to the agencies. 

While the issuance of the Executive Order(s) is imminent, the process and timeline for rewriting and proposing new rule(s) and then responding to the litigation that will likely ensue is unclear.  In the meantime, while the political and regulatory processes unfold, the Supreme Court is currently considering whether the United States Court of Appeals for the Sixth Circuit erred when it held that it had jurisdiction to decide petitions to review the WOTUS Rule (under the judicial review provision of the Clean Water Act, which requires that agency actions “in issuing or denying any permit” under Section 1342 of the Clean Water Act be reviewed by the appellate court), even though the rule only defines the waters that fall within Clean Water Act jurisdiction, but does not actually involve the issuance or denial of a permit.
 

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