Why EPA's suspension of the WOTUS water rule sets such a dangerous precedent

David Festa

Editor’s note: This post was updated on Dec. 11, 2018

We live in a nation of laws and rules for a reason. They make democracy possible – which is also why the Trump administration’s decision today to undermine a 2015 clean water regulation is so dangerous.

The Waters of the United States rule, also known as WOTUS, sought to clarify which wetlands and small waterways are protected under the Clean Water Act of 1972.

As with all rule-making, the policy went through lengthy reviews and public comment periods before being finalized – and as is expected anytime a significant policy is enacted, it landed in court.

The legal uncertainty – heightened in January when the U.S. Supreme Court sent the WOTUS case back to district courts, paving the way for the policy’s implementation in 37 states – is what the administration is now seizing on.

The former administrator of the Environmental Protection Agency, Scott Pruitt, decided to suspend the policy and its implementation because it’s under litigation and poses “regulatory uncertainty” – not because it’s unlawful or no longer justified by the facts.

It’s exactly the kind of arbitrary action Congress feared when it passed the Administrative Procedure Act 72 years ago – a law requiring federal agencies to uphold core principles of our democracy.

The EPA’s rationale for delaying the rule set a new and dangerous precedent for America’s well-established rulemaking processes.

An erosion of long-held democratic values

If any agency action could be withdrawn or suspended solely due to pending or potential litigation and “regulatory uncertainty” – a catch phrase of this administration – our nation’s regulatory structures would be in constant flux. Major shifts in policy would be carried out on a political whim without any legal or scientific basis.

And yet, Pruitt on January 31, 2018, officially suspended the WOTUS rule under these pretenses to halt the implementation of the policy, and to give the Trump administration an opportunity to issue its own version of the rule.

This action represents a substantive change in EPA’s interpretation of the law and a major change in policy – both of which trigger the requirements of the 1946 Administrative Procedure Act. Unsurprisingly, a multi-state legal challenge against the WOTUS suspension is already in the works.

The APA has its background in President Franklin Delano Roosevelt’s New Deal and new agencies he created to help guide the country through the Great Depression.

Many members of Congress sought to create a fair and transparent system of rules that would govern agency decision-making. They passed the APA after more than a decade of study and debate to ensure decisions would be based on public input and careful deliberation.

Trump’s EPA failed to explain action

The APA requires agencies to give the public fair notice and meaningful opportunity to provide input before they act, and to weigh all relevant factors and thoroughly explain their decisions.

Yet, in suspending the clean water rule, the EPA refused to explain why it disagrees with its legal or factual justifications –  relying instead on a desire to avoid “confusion.”

We understand and respect the fact that different stakeholders in WOTUS have different opinions about the policy, and we may not agree with every agency action.

But certainly all Americans can agree that rules must be established, revised or rescinded through the time-tested process Congress established more than 70 years ago.

With its summary decision to suspend WOTUS, the EPA is doing just the opposite.

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Environment killer Pruitt strikes again. Another step by him and his boss to deliberately and systematically destroy our country. When will they stop the destruction? Will they ever? Can we ever recover when they are finally out of office? Thank you EDF for fighting for the environment we ALL depend upon. Your work and that of other environmental groups will save us, I hope.

Martha Deming
February 6, 2018 at 7:50 am

I just read: The oath of office is the only sentence in quotes in the entire Constitution. This ensures the Constitution is supreme and that president excutes (not kills) laws accordingly. The president is treated as a citizen under the Constitution rather than as a supreme authority of the land. This says something special about the nature of the U.S. government and the foresight of the Founding Fathers.

Martha Monson
June 16, 2018 at 3:32 pm

In reply to by Martha Deming

Our water is life support to humanity. We need to cherish and protect it firom corporate abuse and ownership!

Sal Burgio
June 17, 2018 at 7:34 pm

In reply to by Martha Deming

This type of arbitrary action, of passing a rule which flies in the face of impending law in the hopes of getting some fast minute activity accomplished before an impending law banning it takes place, is wrong! Pruitt’s EPA is trying to sneak through some last minute activity which will likely be outlawed soon! This is the kind of trickery pulled by children and liars!

Matthew Van Camp
February 6, 2018 at 11:20 am

It is time to arrest these people for violating laws, policies and the spirit of our regulations. Pruitt should be tried and found guilty.

Ernest Swinson
February 6, 2018 at 2:13 pm

I have been a supporter of EDF for many years.

Jim Ralston
February 7, 2018 at 2:47 pm

The rumor is that Pruitt will head back home to run for governor after one term. He is doing the oil industry, the Koch’s and the Mercers’ bidding now to reap unlimited campaign money for that run. It leaves me with a sadness and surprise that people can forego the purpose of their job and the moral guide that society and religion teaches us as children. He lives for short-term gain at the cost of a life spent in selfishness. 

Gary Hoff
February 7, 2018 at 8:14 pm

A man who takes an Oath of Office which he has no intention of fulfilling has committed a crime against every citizen of the United States. This is the lowest, most despicable behavior of a public servant. Shame on you Scott Pruitt!

Jim Robertson
June 22, 2018 at 2:04 am

In reply to by Gary Hoff

And yet, too many American people continue to support this administration and refuse to learn or accept the facts of this destruction to our country. What is wrong with these Americans? They are complicit.

K Berry
February 9, 2018 at 9:31 am

What's the EPA planning on doing next, allowing companies like Dupont to start dumping in the Brandywine?

P Newman
February 24, 2018 at 5:38 am

It seems clear to me that Pruitt has failed to comply with the APA of 1946. Therefore any action taken by the EPA from this point forward is “illegal.” I recommend that EDF submit a formal letter to Administrator Pruitt requesting a response to this oversight. The letter should be made public and widely distributed to those news outlets and enterprises that are committed to protecting us from the abusive use of power. Scott Pruitt is clearly uncommitted to the mission of the EPA.

Jim Robertson
February 25, 2018 at 8:00 pm

The Army Corps took my land that is adjacent to a jurisdictional wetland. They know they are wrong and I spent tons of money to prove my land was not wetland. After 3 years of back and forth with them I finally gave up for now. I would need a attorney to get the option to build on my lot and can not afford that right now.

My land is a “Subdivision Lot” on a city street in Michigan, it has city sewer and water at the street. I was told at the end over the phone by the Corps that they could not allow my family to build a home because if they did the lots on the next street would be in danger of others wanting to build there home also.

The EPA needs to be better controlled and regulated, they have to much power under the WOTUS Rule. Soon, my land should be exempt from it when Wheeler has it rewritten to be fair, Also note there is no water on my lot all summer, no rare animals, no rare plants. The WOTUS Rule needs to be fair and have a definition that does not require a lawyer and court hearing to interpret it.

Jim Garvey
August 16, 2018 at 7:33 am

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