A U.S. District Court in South Carolina last month revived President Obama’s Waters of the United States (WOTUS) rule in 26 states (now 23 states due to another decision.) The decision is a temporary setback. This, from the court: “The court reiterates that the issue currently before the court is not the merits of the WOTUS rule but the procedure by which the [EPA] Suspension Rule was implemented. Many other courts are delving into the merits of the WOTUS rule – this court need not enter that fray.”
Before people get upset about a court repealing President Trump’s WOTUS rule proposed changes, farmers need to know the South Carolina U. S. district court stated EPA had violated the Administrative Procedures Act (APA )in promulgating its Suspension Rule.
Environmental groups sue EPA
South Carolina Coastal Conservation League, Charleston Waterkeeper, American Rivers, North Carolina Wildlife Federation, and other environmental groups sued Scott Pruitt, former Administrator for EPA, and the Army Corps of Engineers. These groups argued correctly that EPA’s Suspension Rule violated the APA because they were not allowed to submit nor did the Administration solicit any substantive comments regarding changing the regulatory definition to WOTUS.
Mistakes were made
At the time the administration promulgated this rule, I believed a mistake was made. The APA is clear that before promulgating a rule an agency must publish a general notice of proposed rulemaking in the Federal Register.
An agency is generally required to offer an opportunity to participate in a rulemaking by submitting data, views, evidence and arguments. Also, case law is clear that “...the notice is deemed defective if it does not include sufficient detail on its content and basis in law and evidence to allow for meaningful and informed comment.”
The purpose of comment is to allow interested members of the public to communicate its information, concerns and criticisms. The district court judge cites to a well-known opinion for the 4thCircuit which makes it clear to anyone that when an agency suspends one set of regulations and proposes to promulgate another set of regulations, this qualifies as rulemaking under the APA.
What were the lawyers thinking?
This was such a slam dunk for the South Carolina court, you have to wonder what the lawyers were thinking when the Suspension Rule was proposed. Administration lawyers apparently claimed that this issue was so narrow that the present Suspension Rule merely maintained the status quo.
Administration lawyers, in effect, argued this proposed rule was not worthy of seeking comment. They also argued no repeal of the WOTUS rule is being proposed presently.
The South Carolina court concluded there was no meaningful opportunity to comment, and that is simply against the law. The court determined that both EPA and the Corps had violated simple requirements of the APA.
The court slammed EPA and the Corps by saying “To allow the type of administrative evasiveness that the agencies demonstrated in implementing the Suspension Rule would allow government to become a matter of whim and caprice of the bureaucracy.”
Again, this issue is so clear cut you have to wonder whether EPA and the Corps deliberately sought failure in this case.
We must not forget the Obama 2015 WOTUS rule sought to define what constitutes waters of the United States. Initially this definition came out in 1980. In 2015 as we know, the Obama administration sought to replace the Corps’ jurisdiction. The Trump administration had argued it was seeking a two-year delay, which takes us to 2020. Apparently, it will take the bureaucrats another two years to define what is a water of the United States.
It is interesting that 2020 happens to be another presidential election year.
As the court said, with new presidential administrations new regulatory requirements and priorities come into effect. It is clear the bureaucracies seek to drag out this issue as long as possible and seek to keep the Obama administration’s definition of waters of the U.S. This delay helps in achieving this goal. Why is the Trump Administration allowing this nonsense!!!!
The opinions of the author are not necessarily those of Farm Futures or Farm Progress.