The Trump administration asked the Environmental Protection Agency to reject Rapanos v. United States by repealing a 2015 Obama-era regulation under the Clean Water Act.
Repealing the law removes many seasonal streams, small waterways, and wetlands from federal oversight and protection. Citizens who live in states without local EPA departments to enforce federal protections are therefore not obligated to follow federal law.
Without the enforcement of federal law, people in states such as Indiana are free to dump chemicals into wetlands or seasonal streams, which are not protected under Trump’s new law.
Other than being an environmental disaster, the biggest problem with this less restrictive law is that it completely rejects the standard for what the phrase “waters of the United States” means as defined by the U.S. Supreme Court in 2006 under the Rapanos test, which is used by courts to determine whether the federal government has jurisdiction to protect a water source.
Supporters of the new law argue that it will make it easier for farmers and landowners to work near small waterways without getting a permit.
EPA Administrator Andrew Wheeler said the rule “strikes a balance” between bureaucrats in Washington, D.C., and state officials in caring for the nation’s natural resources.
But under the previous standard, water from agricultural discharges were exempt from federal protection. The law that Trump repealed hurt developers, the fossil fuel industry, and mining companies because it prevented them from polluting the nation’s water.
And although some conservatives and right-wing think tanks, like a senior researcher at the Heritage Foundation, have echoed Wheeler and praised Trump for returning this regulatory power to the states, these groups misunderstand separation of powers.
As the executive, Trump does not have the authority to interpret the law. The Supreme Court holds that authority — and they already did this for him.
With these new laws, Trump has abandoned judicial precedent. Although Obama’s 2015 law was only put in place in 20 states, the Rapanos test is the federal standard for determining which waterways are protected under federal jurisdiction. If and when this new law is challenged in a lower court, it will fall flat on its face because lower courts are bound to uphold the decision of the Supreme Court, not Trump.
In the Rapanos case, the late Associate Justice Antonin Scalia wrote the opinion of a four-justice plurality, interpreting the term “waters of the United States” as meaning “relatively permanent, standing, or continuously flowing bodies of water” that are connected to traditional navigable waters, as well as wetlands with a continuous surface connection to such water bodies, according to the United States Department of Justice.
The plurality defined “relatively permanent” in Footnote No. 5, noting that it “does not necessarily exclude streams, rivers, or lakes that might dry up” due to a drought.
Under the new rule, these “relatively permanent” streams as defined by the court, are not protected under federal oversight. Approximately half of the nation’s wetlands will no longer be protected under the new federal law, according to the National Wildlife Federation.
Additionally, Scalia wrote that the Clean Water Act “categorizes the channels and conduits that typically carry intermittent flows of water separately from ‘navigable waters,’ including them in the definition of ‘point sources.’”
According to 33 U.S. Code § 1362, “the term ‘point source’ means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.”
The new law rejects the legal definition of a “point source,” making it impossible for criminal investigators of the EPA to protect these sources of water that would fall under federal regulation, according to the Rapanos test.
Associate Justice Kennedy wrote a concurring opinion in Rapanos and took the Clean Water Act one step further by arguing that non-navigable waters fell under the act if they bore a significant “nexxus.” This essentially means that if someone dropped a popsicle stick in that water source and it flowed to another creek, stream, lake or went all the way to the ocean, then it was protected under federal law.
Trump’s new EPA law rejects Scalia and Kennedy’s interpretations.
In addition to ignoring the supreme law of the land, the new law disregards 1,200 publications of peer-reviewed scientific literature summarized in a 2015 EPA report.
In response to Trump’s new law, the Public Employees for Environmental Responsibility and 44 other scientists and administrators of government environmental and conservation agencies wrote a letter to EPA Acting Inspector General Charles Sheehan. In the letter, the employees said the new law is not grounded in accurate science and mischaracterizes “unscientific content.”
Even the EPA’s own Science Advisory Board criticized Wheeler in a draft letter for the process he used to enact the law.
But the board should expect nothing less when the head of the EPA was a former coal-mining lobbyist.
Julia Mullins is a junior studying politics. She is the city news editor for The Collegian.