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If any agency action could be withdrawn or suspended solely due to pending or potential litigation and “regulatory uncertainty” – a catch phrase of this administration – our nation’s regulatory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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