(Sipa via AP Images)
This week, the Supreme Court hears oral arguments in a case that will determine how far the federal government can go in safeguarding American waterways. At issue are challenges to the Clean Water Rule that began working its way up to the high court two years ago.
Yet no matter what the Court decides, the Clean Water Rule's days are almost certainly numbered as the Environmental Protection Agency finalizes a plan to kill the rule outright this fall. The agency has come under fire from scientists, environmental advocates, and state officials for moves related to its repeal crusade, including cutting back on public input, an ominous sign that flies in the face of past EPA practice.
Scott Pruitt, the head of the EPA, has a personal stake in this battle royale: He helped lead the multi-state legal assault against the rule during his tenure as Oklahoma's attorney general, which culminated in National Association of Manufacturers v. Department of Defense, the case currently before the high court. The case hinges on whether a federal appeals court had the authority to stay the rule in 2015.
As Oklahoma's top law enforcement officer, Pruitt repeatedly blocked Obama's environmental agenda with multi-state lawsuits. Characterizing the water-protection rule as a federal land grab, Pruitt and another opponent, Republican Senator Rand Paul of Kentucky, once
smeared it
as “the greatest threat to private property rights the modern era has ever seen.” The men went on to pledge a concerted campaign to kill the rule. “Failure is not an option,” they wrote.
Since becoming President Trump's top environmental official, Pruitt has taken dead aim at the Clean Water Rule.
Whether or not Pruitt can finally kill the rule, his assault on the EPA's rulemaking process and its ability to enforce basic environmental standards is unlikely to slow down. At risk are not just clean water protections, but the ability of citizens influence how regulations are crafted and enforced, threats that do not bode well for American democracy.
“The degree of aggressiveness in the [Clean Water Rule] repeal effort is unprecedented,” says Jon Devine, senior attorney for the Natural Resources Defense Council's Water Program. “It's hard to identify an action that the previous administration took that this new administration isn't trying to dismantle.”
First passed in 1972, the Clean Water Act's authority was intentionally broad. The act originally covered all water bodies with a “significant nexus,” or connection, to “navigable waters.” But during the George W. Bush years, a series of court cases dramatically curtailed that authority and left much of the act's enforcement in legal limbo.
The Clean Water Rule clarified which bodies of water fell under Clean Water Act protections and which did not. First proposed in 2014, the rule was designed to expand federal protections across 20 million acres of lakes, wetlands, and streams, along with drinking water for more than 117 million Americans. It would also help protect drinking water against contaminants like algal blooms, which last year posed a threat to water sources in more than 20 states.
“There's been a lot of confusion and inconsistency over what's protected and what's not,” says Jennifer Peters, water programs director at Clean Water Action. “The Clean Water Rule itself doesn't require any new regulations. It just more clearly defines what's protected.”
Public input was a top priority when the EPA first proposed the new rule. While the rule was in the works, the agency gave state and local officials, environmental advocates, and private citizens 180 days to comment. Of the one million–plus comments the agency received, nearly 90 percent supported the policy.
But the EPA under Trump has taken a very different approach to its responsibilities to the public. While most major regulatory proposals give people 60 days to contact the agency with comments, the Trump EPA allotted just 30 days for the Clean Water Rule repeal. That move prompted 22 Democratic senators to demand the EPA give the public 90 days to send in their views on the rule. Clean Water Action, the League of Conservation Voters, the Sierra Club, and other national and state advocacy groups also protested the new cutoff. The outcry produced a modest victory: The EPA finally agreed on a 60-day comment window.
Yet Trump's EPA has scheduled only ten hearings on the Clean Water Rule, with only one of them open to the public, and did not include environmental advocates at all. In a July “outreach” session in Orangeburg, South Carolina, Pruitt held a closed-door meeting with a group of farmers, developers, and utility company officials—the people who are enthusiastic about repeal. Pruitt told reporters after the meeting, “What we’re doing is hearing from folks in the states … not associations in Washington, D.C., not 501c(3)s and … other organizations which exist just to engage in advocacy.”
If this conduct seems extreme, Pruitt's allies in Congress were willing to go much further. In July, House lawmakers, including South Carolina Representative Joe Wilson, who attended the Orangeburg meeting, offered a proposal that would allow the agency to ignore public comments entirely and bar environmental groups from challenging the repeal in court. The plan did not get far, but it may signal a new Trump strategy in the push for deregulation. “It would be a remarkable action to remove the public from democratic decision-making,” says Michael Gerrard, a Columbia University environmental law professor.
Unlike their Trump counterparts, Obama environmental officials made a concerted effort to engage farmers, business owners, and developers as well as scientists and environmental advocates about the Clean Water Rule. The EPA conducted hundreds of public meetings across the country and visited farms in nine states. Feedback from these meetings prompted officials to redefine which tributaries would be impacted by the rule and to clarify protections around floodplains and covered waterways.
“Under the previous administration, we would have been invited to a meeting like [Orangeburg],” says Peters. “Clearly, we're not the stakeholder group they're interested in engaging with.”
Perhaps that's because environmental groups are particularly effective in organizing public opposition to dubious undertakings that pose environmental risks. People power played a critical role in the campaign to halt the Keystone XL pipeline project: Organizations like 350.org, Bold Nebraska, and the Sierra Club helped galvanize grassroots opposition. After federal officials conducted dozens of hearings and plowed through more than five million public comments, President Obama killed the pipeline in 2015. (The Trump administration later moved to revive the project.)
“There are not many mechanisms by which the public can have input that affects rulemaking,” says Gerrard. Without public comments and hearings, “only the lobbyists and others wired into the process know what's happening and can express their views.”
NOT SURPRISINGLY, PRUITT HAS NEVER had much interest in protecting the health of waterways or ecosystems—or listening to the people who do. “Scott has no expertise in environmental matters,” says David Page, an environmental attorney with Leach & Sullivan in Duncan, Oklahoma, “other than what he learned from corporate donors.”
During his tenure at Gardere & Wynne, a Tulsa law firm, in the 1990s, Page tried several cases for Pruitt. He claims that Pruitt, who was fresh out of law school and did not have much litigation experience, relied on him and others to try cases in court. Most of their work focused on patent law and product liability, and Page recalls that Pruitt didn't have much interest in environmental law or regulation.
That worldview shifted when Pruitt entered politics in 1998. As a state senator in Oklahoma, he chaired the Civil Justice Task Force of the Koch-connected American Legislative Exchange Council. He also relied heavily on campaign contributions from fossil fuel companies like Devon Energy, Chesapeake Energy, and Koch Industries.
Pruitt launched a full-fledged anti-environmental crusade when he became Oklahoma attorney general in 2010.
He dismantled the Environmental Protection Unit, which defended state environmental laws. The move was a major blow for families and towns that were often at the mercy of the large agricultural and fossil fuel companies that dominate Oklahoma politics and pollute local communities.
“Some big states like California or Florida have similar units, but for a smaller state like Oklahoma it was very unique and it was very powerful,” says Page. “When you have a company as big as Tyson or Cargill, a typical city or county can't stand up to a powerful entity like that.”
Under Pruitt, pending environmental cases ground to a halt, including a lawsuit against Tyson Foods and other large poultry companies over toxic pollution in Oklahoma's Illinois River, a watershed designated as highly vulnerable to groundwater contamination. For years, hundreds of thousands of tons of chicken waste had been seeping into the watershed. To stop the pollution, the state sued the companies in federal district court in 2005.
Page, then working for the state's Environmental Protection Unit, spent five years preparing the case. When Pruitt took office, he made it clear he wouldn't push for a resolution. Today, the case remains in legal limbo. Much like his Clean Water rule repeal effort, Pruitt's slow-going in the Tyson case allowed him to sidestep the case's legal and environmental merits, as well as his responsibility to enforce the law. “If you delay enforcement, it no longer has the opportunity to get back into the regulatory process,” Page explains. “That seemed to be a tactic, and it looks like he's doing it in the same way now.”
In July 2015, backed by corporate allies like the U.S. Chamber of Commerce, the National Association of Home Builders, and the National Mining Association, Pruitt filed a lawsuit against the Clean Water Rule—one of 14 suits he filed against the EPA. According to the Center for Responsive Politics, each of these co-litigators in the Clean Water Rule lawsuit has been a major donor to the Republican Attorneys General Association. In 2016 alone, the Chamber of Commerce donated more than $1.3 million, making it the group’s second-largest benefactor.
Repealing the Clean Water Rule has also been a major priority for the Business Roundtable, a conservative group of CEOs representing nearly two-dozen of America's largest corporations. Within weeks of Trump's inauguration, the group sent the administration a letter, calling on the new administration to rescind a number of Obama-era programs, including the Clean Water Rule. Tellingly, the Business Roundtable includes Exxon Mobil, JPMorgan, and AT&T—all major donors to Pruitt, according to the National Institute on Money in State Politics.
Pruitt's lawsuit was part of a broader assault called the Rule of Law campaign, an alliance of conservative attorneys general that Pruitt helped found when he chaired the Republican Attorneys General Association. Likened to a “large national law firm,” the alliance filed lawsuits against a range of Obama-era initiatives including the Affordable Care Act and DACA. Though the Rule of Law campaign, Pruitt took dead aim at the EPA’s regulatory processes on everything from how agency experts review scientific data to how they estimate the costs of new regulations. The campaign depends heavily on dark-money sponsors like the Judicial Crisis Network and the Koch-connected Freedom Partners Chamber of Commerce for as much as 40 percent of its budget.
A federal district judge stayed the Clean Water Rule just hours before it was to go into effect in August 2015, and a federal appeals court expanded the stay nationwide. The end result? Pruitt’s lawsuit had ensured that the Clean Water Rule was never fully enforced.
Meanwhile, the Oklahoman's aggressive record of undermining federal rulemaking prompted 13 former state environmental protection agency heads to publicly oppose his nomination as EPA administrator. “His record, particularly as a litigator against many EPA rules, causes us to question whether he … appropriately respects science-based decision making,” the former officials warned. “We fear that an EPA under Mr. Pruitt would undermine the rules that help to make sure that our state regulations are successful.” The Senate confirmed Pruitt in February.
The warning proved prescient. In less than seven months, Pruitt has moved to delay or reverse not only the Clean Water Rule but more than 30 other environmental regulations on everything from landfill pollution limits to ozone smog standards to pesticide worker safety protections—a deregulatory assault unprecedented in the agency’s history. The EPA head has also reportedly shifted decision-making away from the EPA’s career staff in favor of political appointees and outside lawyers, along with his former colleagues at the Republican Attorneys General Association.
“Even under Bush, you didn't see this aggressive attacking and rolling back of regulations,” says Peters. “This is new territory.”
The irony is that this assault has created exactly the type of “regulatory uncertainty” Pruitt and his anti-government allies love to rail against. In attacking Obama-era regulations so aggressively, and with such flimsy legal authority, the EPA has made the regulatory environment too unpredictable. “Industry really has no idea what they can rely on in this atmosphere,” says Meleah Geertsma, a senior attorney at the Natural Resources Defense Council. “It seems to be hurting the people that Pruitt is trying to help. Industry lawyers have not been happy.”
The Trump administration is headed into murky legal waters as the Supreme Court considers the Clean Water Rule.
If the court reverses the nationwide stay when it delivers its opinion next year and the rule goes into effect, environmental advocates say that the decision would demonstrate that the rule is not the great threat to private property and states' rights that Pruitt and his allies have made it out to be. “They're trying to push repeal through as fast as possible,” says Peters. “Clearly they're on shaky ground.”
But even if the rule survives, it is still vulnerable to the severe budget cutbacks that the White House and Congress are hammering out. In May, the Trump administration proposed slashing the EPA's 2018 funding by 31 percent, a cutback one Democratic lawmaker called “downright offensive.” While the House budget plan does not go quite that far, the proposal would reduce the agency’s funding to its lowest level in more than a decade.
Trump officials have promised to return the agency to what they view as its primary mission: protecting “clean water, clean air, and other core responsibilities rather than activities that are not required by law.” Yet major budget cuts would directly affect the EPA’s ability to implement the regulations it is legally required to enforce. “The budget would be yet another major obstacle to effectively enforcing the Clean Water Act,” says Devine of the Natural Resources Defense Council. “It would be devastating.”
Pruitt's multi-pronged assault on the EPA not only threatens core environmental protections, but also the ability of citizens to impact how those protections are crafted and enforced. Whether or not the Clean Water Rule can survive, Pruitt's destructive campaign against the EPA's regulatory process ensures that the public is increasingly shut out.
