WOTUS lawsuits force government into a legal pickle


Those lawsuits challenging the Trump administration’s decision to repeal WOTUS are causing some big legal considerations for the government. Some suggest the government’s in a pickle.

POLITICO’s Morning Energy Report explained that it means the administration, as a result of repealing President Obama’s controversial Waters of the US regulation, now has to defend a “much more expansive reading of the Clean Water Act than it eventually wants to establish with a replacement regulation.”

The WOTUS repeal, finalized last week, forces federal agencies to revert to a 1986 reading of the CWA until any replacement rule is complete. But because of two legal challenges filed against the repeal action, the Trump administration must now defend that earlier version.

The administration intends to replace the 1986 reading with one that greatly narrows federal authority. But one lawsuit, brought by the property rights group the Pacific Legal Foundation, argues that the stop-gap rule, relied on for decades, is far too broad.

“The decision to go back to the ’86 regulations, even on what the administration plans to be an interim basis, continues to raise the same problem” as the Obama rule, said Anthony Francois, senior attorney for the Pacific Legal Foundation.

The White House’s strategy is to use the 1986 rules as a legal hedge, so that the Obama-era regulations — much despised by industry and agriculture — are not reinstated if EPA’s forthcoming WOTUS replacement gets tied up in court.

But legal experts say that it also opens up the risk that the courts will simply uphold the 1986 reading, which was more expansive than WOTUS in some ways and often delivered wins in court for environmentalists.

“Under the ’86 rule the government almost never lost, and the environmentalists won a bunch, too,” said Patrick Parenteau, an environmental law professor at Vermont Law School.