In a major upset, Donald Trump wins the Presidency last night. In less than twenty-four hours after the official concession by Secretary Clinton, people are scrambling to figure out what a Trump Presidency really means. Because he was purposefully silent on specifics during the General Election, many are left this morning "reading the tea leaves" to figure out what the future might hold. It is no different when it comes to the future of the EPA and environmental regulations.
Clearly, President-Elect Trump intends to reduce environmental regulation. Just how far he plans on going has yet to be seen. However, two of the most significant EPA regulatory actions under the Obama Administration are clearly on the chopping block- the Clean Water Rule and Clean Power Plan.
What repeal of the Clean Water Rule will mean?
The Clean Water Rule was the Obama Administration’s attempt to extend the reach of federal jurisdiction under the Clean Water Act to most waters and wetlands. To understand the reason for the Clean Water Rule it is important to review the long history that led to is promulgation by EPA.
The CWA limits jurisdiction to "navigable waters" which is defined as "waters of the United States, including the territorial seas." 33 U.S.C. Section 1361(7) Interpretation of the vague term- "waters of the United States"- has been left largely to guidance and the Courts. The most significant decisions were issued by the Supreme Court in Rapanos and SWANCC. Justice Kennedy, plurality decision in Rapanos held that CWA jurisdiction extended to both navigable waters and any non-navigable water that had a "significant nexus" to a navigable waterway.
As applied, the "significant nexus" test extends jurisdiction to small tributaries and wetlands separated from large rivers or water bodies. Under the test, these smaller streams or wetlands fall under federal jurisdiction if impacts to the stream or wetland would affect the "chemical, physical, and the biological integrity of a navigable water."
EPA issued the Clean Water Rule in attempt to better define how the significant nexus test should be applied as well as establish which waterways were exempt from coverage. The rule was harshly criticized as an overreach by EPA. Soon after its release, the rule was challenged by a number of states and business groups. The Sixth Circuit Court issued a stay blocking implementation of the rule until the case could be heard.
There is little doubt the a Trump Administration will repeal the Clean Water Rule as a significant overreach of federal jurisdiction under the Clean Water Act. However, unless the rule is replaced with a new definition of "waters of the U.S." businesses and individuals will have no regulatory certainty. Repeal of the rule will mean continuation of the status quo of vague guidance and litigation in the Courts over the extent of federal jurisdiction.
What will be fascinating to see is whether a Trump Administration is simply satisfied with repeal of the Clean Water Rule or whether the Administration attempts to provide much needed regulatory certainty. One approach would be to limit federal jurisdiction under a new rule and rely on the states to determine which smaller streams or more isolated wetlands should be protected strictly under state law. Ohio provides a good example of how this regulatory structure could work as it was one of the few states that passed a law protecting isolated wetlands after the Supreme Court decision in Rapanos.
Revoking the Clean Power Plan
It is also clear that the Obama Administration most significant regulatory action- promulgation of the Clean Power Plan- will be undone within the first 100 days of the Trump Presidency. Years of technical and legal work by EPA went into development of the rule. However, the rule was based on very tenuous legal grounds.
After repeal, unlike the Clean Water Rule, there is virtually no chance the EPA under President Trump will replace the Clean Power Plan. Furthermore, there is a very good chance additional climate change regulatory actions by EPA will be eliminated.
However, despite those who forecast the end of all climate change related regulation, the Clean Air Act will still exist. The Supreme Court has already decided that greenhouse gases are a "pollutant" under the Clean Air Act. What this means is a likely a return the the Bush-era on climate change litigation- Blue States and environmental groups using the Courts to push for regulation or blocking attempts to repeal enacted regulations. Litigation means less certainty for businesses, however, less regulation is a certainty as well.