Does Scott Pruitt have a solid case for repealing the Clean Water Rule?.
On June 27, Environmental Protection Agency Administrator Scott Pruitt signed a proposed rule rescinding the Obama administration’s “Clean Water Rule.” This regulation is designed to clarify which streams, lakes, wetlands and other water bodies fall under the protection of the Clean Water Act.
Making the case for change Under the Administrative Procedure Act, federal agencies must follow specific steps when they seek to establish or repeal a regulation.
(Normally public comment periods last for 60 days, and the Clean Water Rule was open for comment for 120 days.)
In a seminal 1983 decision, the Supreme Court ruled that an agency must supply a “reasoned analysis” when it rescinds a rule adopted by a previous administration.
But according to a detailed 50-state survey by the Environmental Law Institute, 36 states “have laws that could restrict the authority of state agencies or localities to regulate waters left unprotected by the federal Clean Water Act.” According to a report by the Association of State Wetland Managers, only 23 states have laws that directly regulate activities that impact wetlands.
After rescinding the Clean Water Rule, Pruitt proposes to carry out a new and potentially lengthy rule-making process in which EPA and other agencies will reevaluate which waters are protected under the Clean Water Act.
Pruitt says it is necessary to repeal the Clean Water Rule while EPA reviews which waters should be covered by the Clean Water Act.
But that is exactly what his proposed repeal would do.
The court would likely grant EPA’s request to extend the stay for a reasonable period of time to allow EPA to initiate a full rule-making on a proposed revision of the rule.