Whither WOTUS?

by Daniel Farber | May 24, 2017

President Trump ordered EPA and the Army Corps to review the Obama Administration’s Waters of the United States (WOTUS) rule, which sets expansive bounds on federal jurisdiction over water bodies and wetlands. The agencies have sent the White House a proposal to rescind the WOTUS rule and revert to earlier rules until they can come up with a replacement. In my view, either the agencies will have to dive deep into the scientific thicket in the hope of justifying a new rule, or they will have to gamble that Trump will get another Supreme Court appointment before their action gets to the Court.

The Current State of Play

To set the stage, WOTUS (short for “Waters of the United States”) is a response to the Rapanos decision, in which Justice Scalia and three others judges argued for a very narrow definition of federal jurisdiction over streams and wetlands, while Justice Kennedy adopted a more generous interpretation based on the existence of a nexus with traditional “navigable waters” – waterways that are suited to some kind of transport. There were four dissenters who wanted to extend jurisdiction even further than Kennedy, so there are five votes for going at least as far as Kennedy. President Trump issued an executive order directing the agencies to reconsider the scope of federal jurisdiction under the Clean Water Act, with particular attention to Scalia’s interpretation.

On February 28, EPA and the Army Corp issued a notice of proposed rule-making, announcing ...

CPR Scholars' Recent Op-Eds

by Matthew Freeman | May 15, 2017
CPR Member Scholars continue to make their voices heard on the nation’s opinion pages. You can always review the latest and greatest pieces on our op-eds page, but here’s a roundup from the last few weeks to save you a couple clicks. Two CPR Member Scholars had pieces in The American Prospect in mid-April. Tom McGarity called out the right wing’s on-again, off-again allegiance to states’ rights in "Trumping State Regulators and Juries." McGarity writes, “Conversations about how progressive states ...

Thinking Globally, Acting Transnationally

by Daniel Farber | May 12, 2017
The U.S. government obviously isn't going to be taking a global leadership role regarding climate change, not for the next four years. At one time, that would have been the end of the story: the only way to accomplish anything internationally was through national governments. But we live in a different world today, and there are other channels for international action against climate change. Today, transnational networks of state and local governments, private firms, and NGOs are actively addressing climate ...

Trump's Plan to Dismantle National Monuments Comes with Steep Cultural and Ecological Costs

by Sandra Zellmer | May 04, 2017
Professors Michelle Bryan and Monte Mills of the University of Montana co-authored this article with Center for Progressive Reform Member Scholar and University of Nebraska—Lincoln Professor Sandra Zellmer. It originally appeared in The Conversation on May 3, 2017. In the few days since President Trump issued his Executive Order on National Monuments, many legal scholars have questioned the legality of his actions under the Antiquities Act. Indeed, if the president attempts to revoke or downsize a monument designation, such actions ...

Trump's Environmental Steamroller Bears Down on National Monuments

by Robert Glicksman | May 01, 2017
Donald Trump's antagonism toward environmental and natural resource protections seems to know no bounds, legal or otherwise. Among his latest targets are our national monuments, which include some of the most beautiful and historically, scientifically, culturally, and ecologically important tracts of federally owned lands. During the reign of destruction the president has unleashed in his first 100 days in office, his commitment to fossil fuel resource extraction and development regardless of the impact on our nation's natural resource heritage has ...

Baltimore's Experience May Yield Lessons for Senate as It Debates Integrated Planning Bill

by Evan Isaacson | April 13, 2017
The City of Baltimore is wrapping up an $800 million upgrade of its largest sewage treatment plant. At the same time, the city is starting a $160 million project to retrofit a drinking water reservoir; is in the midst of a $400 million project to realign a major section of its sewer system; and is spending several million on projects throughout the city to manage polluted runoff from its streets and other paved surfaces. And these are just a few ...

How Trump's Proposed Cuts to EPA Disempower States

by Karen Sokol | April 11, 2017
Last month, President Trump released his proposed budget for fiscal year 2018, which calls for sharp cuts to many agencies in order to fund increases in defense and military spending. Hardest hit is the Environmental Protection Agency. Already underfunded, EPA will simply not be able to carry out its statutory mandates to keep our environment clean and healthy if subjected to Trump's proposed cut of 31 percent. Rather, the Trump administration asserts that the agency would "primarily support States and ...

Looking for Inspiration Outside the Beltway? See What's Happening in Maryland.

by Matt Shudtz | April 10, 2017
Thank goodness for state-level policymakers who are resisting the Trump administration's extreme policies. Attorneys general from around the nation are making headlines by fighting Trump's discriminatory immigration ban. Governors from both major political parties stood up to the attempt to strip away health care from millions of hard-working Americans and their children. And mayors and law enforcement officials are lifting up undocumented residents and recognizing their many contributions to our society, rather than assisting in the indiscriminate roundups Trump has ...

Why Trump's Environmental Rollbacks Won't Boost the Economy

by Michelle Zemil | April 07, 2017
It was Ronald Reagan who popularized attacks on regulations when he was on the campaign trail in 1980, and since then, the tactic has been an inescapable feature of our political landscape. The false claims about environmental regulations, job creation, and the economy have been repeated so frequently and for so long that many Americans don't even question them. Yet no matter how many times a fallacy like this is repeated, it remains untrue.  President Trump and his administration have ...

News and Observer Op-ed: Trump Can Order, but Federal Judges Will Decide on Climate Rules

by Victor Flatt | April 03, 2017
This op-ed originally ran in the Raleigh News & Observer. President Trump's new "energy" executive order is an attempt to roll back Obama regulations on climate change, and even make considerations of climate change disappear from much of the policymaking process altogether. That's quite a lot to accomplish by executive order, and despite all the media attention he got for it, the president is eventually going to discover that he can't eradicate climate realities from federal consideration with the stroke ...

Trump's Executive Order on Climate Policy Rollbacks, Annotated

by Emily Hammond | March 29, 2017
Donald Trump's anti-climate action executive order is, as CPR President Rob Verchick puts it, a classic act of bullying. As I describe in an annotated version of the order, it is also irrational, failing to achieve the very aims it purports to support while inflicting damage to our climate, environment, natural resources, wildlife, and yes – even our coal miners.  In the annotation, I walk through each section of the order, providing an analysis and commentary on just what it ...

Sowing Confusion and Doubt, Trump Attempts Climate Policy Rollbacks

by Robert Verchick | March 28, 2017
Donald Trump has been in office only 68 days, and already I've passed the threshold from shock to boredom. His order to erase climate change from federal policy, preceded by a speech before captive members of the Environmental Protection Agency (EPA), only seals the deal. I served at the EPA during President Obama's first term, helping that agency and others prepare for the hazards of climate change. That work is serious and complicated and subtle. Trump, of course, is anything ...

Trump Cuts and the EPA: Making America Less Healthy Again

by Joel Mintz | March 27, 2017
This op-ed originally ran in The South Florida Sun Sentinel. The most drastic cut in President Donald Trump's recently released budget outline is to the Environmental Protection Agency (EPA), the agency tasked by law with setting and enforcing national standards to limit water, air, and land pollution; conducting scientific research to protect our health and the environment; and assisting state and local governments in reducing pollution. Even as the tasks assigned to it by Congress have multiplied over the years, the EPA's budget has ...

As EPA Embarks on Dangerous Experiment in Federalism, How Will States Respond?

by Evan Isaacson | March 20, 2017
In the early 1970s, Congress passed the Clean Air Act and Clean Water Act on nearly unanimous votes. The overwhelming support for these new laws reflected not only the horrific condition of America’s air, water, and landscape at the time, but also an appreciation of the collective action problem states faced, necessitating federal action. The major environmental laws that passed in the following years were predicated on the need to set a federal floor for environmental standards in order to ...

A Dark Day for the Bay

by Evan Isaacson | March 17, 2017
Last year around this time, I happily deleted this headline, "A Dark Day for the Bay," which I was preparing to use for a blog post in the event that the U.S. Supreme Court decided to hear the appeal of the American Farm Bureau Federation and other plaintiffs in their challenge to the Chesapeake Bay cleanup effort known as the Bay TMDL. Ultimately, the Court denied that appeal, leaving in place the decision of a federal appeals court that upheld ...

The Murr Case: Of Lot Mergers and the Future of Land Use Regulation

by John Echeverria | March 15, 2017
On Monday, the Supreme Court will hear oral argument in a seemingly minor zoning case, Murr v. State of Wisconsin. In reality, the case involves a fundamental challenge to public authority to protect our communities and private property. In particular, if the Court were to rule in favor of petitioners, it would make it vastly more difficult for communities to compel large-scale developers to comply with zoning and other land use laws. Here’s the back story. In 1972, the Secretary ...

Myths, Realities, and the Clean Water Rule Controversy

by Dave Owen | March 06, 2017
Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen. Last Tuesday, President Trump signed an executive order directing EPA and the Army Corps of Engineers to begin work on a new rule defining the scope of federal jurisdiction under the Clean Water Act. The rule, if and when it is finalized, would replace the "Clean Water Rule" released by EPA and the Corps during the summer of 2015. Much of the political rhetoric surrounding the Clean Water Rule has suggested ...

Catching Up on CPR's Recent Op-Edery

by Matthew Freeman | March 06, 2017
Unless you regularly read newspapers from markets ranging from Baltimore to Houston to the San Francisco Bay area, chances are that you missed some of the op-eds that CPR’s scholars and staff published in the nation’s newspapers in February. We post links on our website, of course; you can find them on the various issue pages, as well as on our op-eds page. But we thought CPRBlog readers might appreciate a quick rundown from last month, so here goes: In ...

Environmental Policy

The planet faces unprecedented environmental challenges. Heading the list of threats is climate change, but other problems persist, including air and water pollution, toxic waste, and the protection of natural resources and wildlife. In recent years, we've been reminded that many of these problems , in their way, magnify the harm from natural disasters.

Whither WOTUS?

Farber | May 24, 2017 | Environmental Policy

Trump's Environmental Steamroller Bears Down on National Monuments

Glicksman | May 01, 2017 | Environmental Policy

How Trump's Proposed Cuts to EPA Disempower States

Sokol | Apr 11, 2017 | Environmental Policy

The Center for Progressive Reform

455 Massachusetts Ave., NW, #150-513
Washington, DC 20001
info@progressivereform.org
202.747.0698

© Center for Progressive Reform, 2015