Today the Environmental Protection Agency is expected to get bad news. First up will be an executive order to rollback one of President Obama’s water protection rules while the second could come later tonight and during President Trump’s address to the nation. Then, he is expected to slash the Environmental Protection Agency’s budget, making it harder to enforce rules on the books.
A New York Times piece said that the executive order would give Environmental Protection Agency Administrator Scott Pruitt the ability to rewrite 2015 rule known as Waters of the United States. But that effort could take longer than a single presidential term, legal experts told the paper.
The executive order is one piece of a complicated mosaic that the president is using to dismantle the environmental agenda. In the near future, the president will also sign other orders to dismantle President Obama’s Clean Power Plan that sets limits on carbon emissions.
But executive orders do not carry the full weight of the law in most of these cases. That is, if laws have been on the books and there is a desire to overturn them, it can be done in one of two ways: First, either the courts have to declare them outside the bounds of what legislators had intended. Or, second, US lawmakers have to rewrite the laws.
“The executive order has no legal significance at all,” said Richard L. Revesz, a professor of environmental law at New York University, told the New York Times. “It’s like the president calling Scott Pruitt and telling him to start the legal proceedings. It does the same thing as a phone call or a tweet. It just signals that the president wants it to happen.”
“States, landowners and businesses across the country should watch closely for any changes to the (water) rule once the executive order is signed,” added Paul Beard, counsel in Alston & Bird’s Environmental, Land Use & Natural Resources Practice Group, whose litigation experience includes a landmark U.S. Supreme Court property rights case.
“While any changes dealing with the (water) rule will take time to go into effect and likely result in litigation, reworking the rule as it currently stands could provide clarity surrounding the scope of the federal government’s jurisdiction over wetlands in the United States,” Beard continued.
Of course, a fight will be at hand. The legal wrangling could take years while the US Senate is closely split, meaning that Democrats could use the filibuster to defeat Republican proposals to curb environmental standards.
That still won’t stop Pruitt, who sued EPA 14 times during his tenure as Oklahoma’s attorney general. Over the weekend, he told a conservative group that the regulations need to be rolled back in an “aggressive way,” the Times reported.
The clean water rule that the Obama administration had written in 2015 is a continuation of the Clean Water Act of 1972. It gives the federal government powers to deal with water pollution pollution in rivers and bays. The Times says that prior court decisions muddied the waters — no pun intended — as it relates the federal government’s role in protecting small bodies of water. Obama’s rules were meant to clarify those ambiguities.
But it has been opposed by farmers as well as fertilizer and pesticide makers, and oil and gas companies. They feel it impedes economic expansion.
According to the Times, the current EPA must withdraw the Obama-era ruling and then submit its own. It has to say why the latter ruling would be superior to the “older” one. And then, of course, the whole thing would head to the courts — and eventually to the US Supreme Court.