Our colleague Larry Liebesman, who spent 11 years as a Department of Justice environmental litigator, has been blogging about federal Waters of the U.S. (WOTUS) rules for years. See here and here for recent examples.
Recently E&E environmental reporter Hannah Norton emailed Larry with questions about how a Biden Administration might approach the thorny legal and policy questions surrounding this issue. Hannah’s incisive article just posted here and since she understandably didn’t have room to include all of what Larry said, we’re sharing his full commentary below:
1) Would the Congressional Review Act apply to a new WOTUS rule?
Larry: A 2001 Congressional Research Service report defines the Congressional Review Act as establishing:
“…expedited (or ‘fast track’) procedures by which Congress may disapprove a broad range of regulatory rules issued by federal agencies by enacting a joint resolution of disapproval…. The Senate may use the procedure for 60 days of session after the agency transmits the rule to Congress. In both houses, however, to qualify for expedited consideration, a disapproval resolution must be submitted within 60 days after Congress receives the rule, exclusive of recess periods.
“If a disapproval resolution is enacted, the rule may not take effect and the agency may issue no substantially similar rule without subsequent statutory authorization…. If either house rejects a disapproval resolution, the rule may take effect at once.”
The Trump WOTUS rule was finalized late April and went into effect on June 22 so I don’t think that it would qualify for CRA. Other final environmental rules such as the recent NEPA revisions may very well be subject to CRA review.
2) What options would a Biden administration have in the ongoing WOTUS litigation? Would it have to write a new rule?
Larry: A Biden Administration could take a voluntary remand of the Trump rule and ask the Justice Department to seek dismissal of pending challenges by environmental groups and States. A Biden Justice Department would then likely ask plaintiffs to dismiss their challenges voluntarily and agree with DOJ’s remand request.
Industry groups which support the Trump Administration’s WOTUS rule could fight such an effort by the Biden Administration and try to keep current litigation alive in hopes of a favorable decision on the Trump rule. But that faces an uphill challenge.
The Biden Administration may also argue that it has a right to re-evaluate prior rules just like the Trump Administration did regarding several Obama environmental rules. If that remand occurs, the Biden administration could try to find a way not to follow the Trump rule during the remand process. For example, a Biden DOJ could request a Court with a pending case to vacate the Trump WOTUS rule while the Administration goes through a new rulemaking process.
The Biden Administration could then follow the 2019 rule that vacated the Obama rule and reinstated the 2008 guidance issued after the Supreme Court’s 2006 Rapanos decision. Industry groups supporting the Trump WOTUS rule would almost certainly fight to keep it in effect during the likely long remand process.
3) Would a Biden Administration be likely to craft a new WOTUS rule if it thinks it can't defend it before a conservative Supreme Court? And would possibly lead a Biden Administration to scrap the Trump rule and leave in place the 2008 guidance?
Larry: It’s hard to predict how a new WOTUS rule would be crafted in order to be sustained in an eventual Supreme Court review. If a Biden Administration desires to create a new rule, it would have to analyze carefully whether a new WOTUS rule identical to the Obama Administration’s rule and based largely on Justice Kennedy’s “significant nexus” opinion would survive in a Court that is likely to still have a 5-4 conservative majority.
Given that Justice Roberts sided with Justice Scalia in Rapanos and his comments in cases since then, going back to the Obama rule may not be successful in the Supreme Court.
The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.