A former Trump Environmental Protection Agency (EPA) official and Senate Republicans have criticized a ruling by U.S. District Court Judge Rosemary Márquez for the District of Arizona, who remanded and vacated the Trump administration’s 2020 Navigable Waters Protection Rule (NWPR) last month.
The NWPR had replaced the Obama administration’s 2015 Clean Water Rule for interpreting the “waters of the United States” (WOTUS) under the 1972 Clean Water Act.
The Trump rule has been opposed by environmental organizations such as the Natural Resources Defense Council (NRDC), which has claimed that the rule “misrepresents the science on streams and wetlands” and “poses substantial risk to our waters.”
The rule has drawn support from farming and ranching organizations such as the American Farm Bureau Federation, which has claimed that it would simplify complex jurisdictional issues and clarify that “usually dry areas should no longer be considered federally regulated water.”
The district court decision was met with concern from Matthew Leopold, who assisted in creating the NWPR as EPA general counsel under Trump.
“I think that it’s fairly unprecedented to vacate a duly promulgated federal regulation, like the Navigable Waters Protection Rule, without undertaking a review of the rule itself and how it relates to the authority under which it was promulgated, which is the Clean Water Act,” Leopold told The Epoch Times. “The judge’s order is very short.”
Leopold thinks case law from the 9th Circuit Court, under which Arizona’s district court falls, and other circuits around the country would suggest that Márquez, an Obama appointee, should have taken additional steps before granting the remand with vacatur.
The Arizona court’s decision comes just months after the Biden administration’s EPA and the U.S. Army Corps of Engineers signaled their intention to revise the Trump administration’s WOTUS definition, which they claimed was causing “destructive impacts to critical water bodies.”
Notably, in an associated June filing with the U.S. District Court for the District of Massachusetts, the EPA sought to remand but didn’t seek to vacate NWPR, “in light of the Agencies’ stated intent to address their substantial concerns with the NWPR through a new rulemaking.”
South Carolina’s district court also remanded the NWPR without vacating it, in line with the EPA and Corps’ request.
By contrast, the environmentalist NRDC has sought to have the courts both remand and vacate the rule, arguing that a remand alone would “[allow] an illegal rule to remain in place indefinitely.”
After the Trump administration initially issued the NWPR, Colorado’s district court issued an administrative stay that was later lifted by the U.S. Court of Appeals for the 10th Circuit.
The EPA and Corps have swiftly responded to the Arizona court’s remand—an EPA webpage now states the agencies “are interpreting ‘waters of the United States’ consistent with the pre-2015 regulatory regime until further notice.”
Meanwhile, in a Sept. 3 letter to EPA and Army officials, Democrats on the Senate Environment and Public Works (EPW) Committee, led by Chairman Thomas Carper (D-Del.), stopped short of praising the decision, stating that they’ve “noted” it. As plaintiffs in the Arizona case, the EPA and Army officials had argued that the rule should be remanded without vacatur.
“In light of your administration’s strong concerns about the adverse impacts of the Trump rule, we urge you, nonetheless, to proceed to remove the NWPR administratively through a formal notice and comment rulemaking on the basis of its fundamental policy failings,” the senators wrote. “We also urge the agencies to narrowly tailor their removal of the NWPR in order to restore safeguards for those waters that have been protected since the 1980s.”
The ranking member of the EPW committee, Sen. Shelley Moore Capito (R-W.Va.), issued a statement on Aug. 31 criticizing the decision and the EPA’s general approach to WOTUS.
“This opinion highlights EPA’s lack of transparency around repealing and replacing NWPR,” Capito said. “For months, I have asked EPA and the U.S. Army Corps of Engineers to provide any specific examples of any actual environmental harms occurring under NWPR, yet none have been provided. While the ruling cites ‘the possibility of serious environmental harm if NWPR remains in place,’ there hasn’t been any evidence from either agency to support the claim.
“Administrator Regan promised transparency regarding the repeal of NWPR. However, his failure to follow through on that promise with any scientific data or specific examples has led us to this court’s decision based on the opinion of activists.”
Leopold said that he believes that the decision could be overturned on appeal.
“The EPA has been clear that they believe the [NWPR] rule is not as protective as they would like it to be,” he said. “Administrations can change policy, and that’s well established in case law.
“The question in Arizona, though, is about respecting that rule-making process, which is deliberate and well-considered and not having rash decisions that are not well supported vacating rules without going through the proper process.
“I think there are legitimate arguments that this decision could be overturned on appeal. I think it would be appropriate for the litigants to file additional briefing requesting clarification of the judge’s order, and/or file appeals raising the standards that the 9th Circuit has articulated in order to grant remand with vacatur.”