This afternoon, Science magazine is publishing an article [abstract available, article itself behind paywall] I co-authored with a number of distinguished environmental science professors from around the country. The article dissects the rule and shows the remarkable disregard for science that the Trump administration displayed in its recent dismantling of the 2015 Clean Water Rule, which protected millions of miles of rivers and acres of wetlands from polluters.
The article makes clear that the Trump administration’s Navigable Waters Protection Rule (NWPR), which just went into effect in June, has gutted protections for whole categories of waters despite the Clean Water Act’s express mandate that regulators protect the “chemical, physical, and biological integrity” of the nation's waters.
The scientist co-authors show how the new deregulatory action ignores or downplays what the best science establishes about the connectivity and functions of waters previously protected. The Obama-era rule was based heavily on science laid out in an EPA report, The Connectivity Report, that comprehensively compiled state-of-the-art peer reviewed science on types of waters and their roles.
As explained in the policy sections of the Science article, the Trump administration rejected this science-based approach. Instead, it explicitly built its rule on a Supreme Court opinion by Justice Antonin Scalia that advocated a cramped reading of the Clean Water Act by focusing on permanent and continuous surface water connections and paying little heed to the interconnected nature of waterways and the important functions of wetlands, tributaries, and ephemeral waterways.
This choice by Trump’s overwhelmingly deregulatory agencies was predictable from a policy point of view but is surprisingly shaky from a legal perspective. The Scalia opinion’s limitations on protected waters in the 2006 Rapanos case did not garner majority support, and, indeed, was expressly rejected by a Court majority. Five justices instead called for far more expansive protections focused on the functions of waters, as explained in an opinion by Justice Anthony Kennedy that four dissenters embraced as appropriate, although they would have protected even more. For more than a decade after the Rapanos decision, federal regulators and litigators interpreted statutory, regulatory, and case law as extending protections to all of the waters Justice Kennedy and the four dissenters said are protected, as well as the far narrower set of waters Scalia’s opinion would protect.
The impact of the Trump rule will be enormous. Our Science article’s key contribution is to document just how enormous, and to expose just how much actual science the administration ignored in its haste to undo the Obama protections for waterways. Federal law allows states to extend protections beyond the federal rule, but the anti-regulation mood in some state capitals has led many states to adopt laws precluding protections that extend beyond those of federal regulations, and other states have historically been more lax in protecting waterways.
The result is sadly predictable: The nation's waters will be degraded, imperiling drinking water quality, harming ecosystems, and allowing industrial discharges or filling of what are now newly federally unprotected waters. If unprotected, polluters will no longer need a federal pollution permit to dump their waste into our waterways, effectively transferring the cost of cleaning up their own pollution to the rest of us, a cost some of us will pay with our health, and even our lives.
Perhaps most troubling, the NWPR’s approach, like the Scalia language it largely follows, will massively eliminate protections for previously protected waters in arid regions of the American West and Southwest. Where water is most scarce and valuable for ecosystems and human uses, federal protections are now weakest. And with the climate crisis expanding areas of water scarcity, this new rule will, over time, have even more extensive harmful effects.
In sum, this new Trump rollback is based on unsound, cursory reference to science, built on a legally erroneous foundation, and will, as our article clarifies and documents, cause massive harms to the nation's invaluable waters, especially where most scarce and important.
Read more about CPR's work on the Waters of the United States and the Clean Water Rule, here.
Read more about our work on Clean Science, here.
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William Buzbee | August 13, 2020
A new article in Science magazine that I co-authored with a number of distinguished environmental science professors from around the country dissects the remarkable disregard for science that the Trump administration displayed in its recent dismantling of the 2015 Clean Water Rule, which protected millions of miles of rivers and acres of wetlands from polluters.
Sidney A. Shapiro | August 12, 2020
Regulatory agencies do not appear to be permeated by overt racism, but structural or institutional racism exists if bias is built into existing institutions. We tend to think of administrative procedures as being neutral between competing points of view, but as the environmental justice movement (EJ) keeps reminding us, this is not necessarily so. It is no secret, for example, that the rulemaking process is dominated by corporate interests, and the same is true of the lobbying that occurs at agencies. Environmental and other public interest groups are hard pressed to match this advocacy. Less noticed is that the fact that there is little or no participation by marginalized communities in rulemaking, although as the pandemic has taught us, our most disadvantaged citizens are the ones that bear the brunt of inadequate government protections. Efforts to reach out and speak to such communities are simply not a regular part of rulemaking practice. True, there is no legal barrier to such participation, but there are considerable structural and economic barriers, which we simply overlook. The administrative process can be more inclusive, and it is time, past time really, to have a discussion how to make it so.
Kim Sudderth, Samuel Boden | August 11, 2020
On October 20, 1994, rising floodwaters from the San Jacinto River in Houston, Texas, caused a pipeline to break open, allowing gasoline to gush out and the river to catch fire. Such flooding is increasingly likely as the effects of climate change take hold, and yet, in the quarter century since that disaster, the federal government has implemented no new regulations to ensure that oil and gas operators are adequately preparing for the risks from more frequent and intense floods caused by the climate crisis.
Darya Minovi, Katlyn Schmitt | August 5, 2020
In July, the Maryland Department of Environment (MDE) released the findings of a new ambient air quality monitoring project focused on the state’s Lower Eastern Shore. This effort was announced more than a year ago as a partnership between the Delmarva Poultry Industry (DPI), a trade group for just what it sounds like, and MDE to monitor ammonia and particulate matter emissions from industrial poultry operations.
James Goodwin | August 4, 2020
Yesterday, I joined a group of CPR Member Scholars and staff in submitting comments on the Environmental Protection Agency's (EPA) "benefits-busting" proposal, which would drastically overhaul how the agency performs cost-benefit analysis on its biggest Clean Air Act rules. As we explain in our comments, the action is a thinly veiled effort to rig the results of those analyses – more so than they already are – to make it harder to issue appropriately strong safeguards, thereby sabotaging the effective and timely implementation of the Clean Air Act.
Brian Gumm, Matt Shudtz | August 3, 2020
Based on its current projected path, Tropical Storm Isaias could bring heavy rains up and down the East Coast, from the Carolinas and Virginia to the Delmarva Peninsula, Pennsylvania, and New Jersey. Along the way, the storm could swamp industrial facilities, coal ash ponds, concentrated animal feeding operations (CAFOs), and more. From Hurricane Florence to Hurricane Harvey and beyond, in the past 15 years, we've seen numerous tropical storms flood unprepared facilities. This has caused significant infrastructure damage and unleashed toxic floodwaters into nearby communities and waterways, threatening public health and making residents sick.
Matt Shudtz | August 3, 2020
The nation is finally beginning to grapple with the widespread disparities in public health, economic opportunity, and community well-being across race and class that stem from longstanding systems of oppression and injustice. As systems thinkers, CPR's Board, staff, and Member Scholars have devoted considerable time to researching and understanding the roots of these inequities, considering the disproportionate impacts on frontline communities, and advocating for just policy reform.
Joel A. Mintz | July 29, 2020
In an article headlined, "Dozens of facilities skipping out on EPA pollution monitoring have prior offenses," The Hill reported the following on Wednesday: "More than 50 facilities across the country that have faced enforcement actions for alleged Clean Water Act violations are among those taking advantage of an Environmental Protection Agency (EPA) policy that lets companies forgo pollution monitoring during the pandemic, an analysis by The Hill found. The temporary EPA policy, announced in March, says industrial, municipal and other facilities do not have to report pollution discharges if they can demonstrate their ability to do so has been limited by the coronavirus. The Hill first reported that 352 facilities have skipped water pollution monitoring requirements under the policy, which applies to air pollution as well. Of those facilities, 55 have faced formal enforcement actions in the past five years from either the EPA or state regulators." As disturbing as this news is, it is absolutely no surprise.
Katie Tracy | July 29, 2020
Workers presently have no right to bring a lawsuit against employers under the Occupational Safety and Health Act (OSH Act) for failing to provide safe and healthy working conditions. If an employer exposes workers to toxic chemicals or fails to guard a dangerous machine, for example, they must rely on the Occupational Safety and Health Administration (OSHA) to inspect, find a violation, and issue a citation. This omission in the 1970 statute is especially troubling in the context of COVID-19, as workers across the United States continue to face a massive workplace health crisis without any meaningful support from OSHA or most of its state and territorial counterparts. As the pandemic makes crystal clear, workers need and deserve the right to step up and enforce the law when OSHA is unable or unwilling to do its job. In a new CPR report, CPR Member Scholars Michael Duff, Thomas McGarity, Sidney Shapiro, Rena Steinzor, and I call on Congress to update the OSH Act and provide workers with a private right of action.