JUST PLAIN NUTS REDUX

Posted on July 2, 2020 by Dick Stoll

In my ACOEL post of June 10, 2019, I led with this:

Seth Jaffe’s recent ACOEL post correctly laments that the current judicial review regime for EPA’s Waters of the United States (WOTUS) rule is ‘just plain nuts.’  He points to two recent conflicting federal district court decisions, leaving the Obama WOTUS rule in place in one area and remanding it in another.”

I reinforced the situational nuttiness by noting that after several federal district courts had issued opinions, the Obama WOTUS rule continued to apply in 23 states, but was blocked in 26 states.  (New Mexico was split by counties!)  And to make the situation even crazier, the 23 states where the rule remained in place were hardly contiguous – looking at a map, it would appear someone threw darts.

My 2019 post pleaded with Congress to add “just a few words” to the Clean Water Act to bring it into accord with all the other major federal environmental statutes – by simply providing for direct Court of Appeals review of all nationally applicable CWA rules.  Even if parties filed in several Circuits under such a regime, federal statutes provide a procedure assuring that all filings would be consolidated in a single Court.

Well guess what?  Congress somehow ignored my 2019 post, and the new Trump WOTUS rule became effective recently.  So now we are all set for another round of total craziness. 

To wit, Seth just posted a report of one district court allowing the Trump rule to remain in effect, and another court enjoining the new rule. More rulings from various district courts are almost certain to follow, and they again are almost certain to be inconsistent.

My 2019 post concluded by recognizing the polarized political times we live in.  But I questioned why it should be polarizing to provide direct Court of Appeals review of a critical EPA rule to avoid this crazy patchwork of inconsistencies throughout the nation. 

Come on now!  Direct Court of Appeals review for national rules has for decades been the heavy norm in federal environmental statutes.  Should this be considered a liberal vs. conservative, or Democrat vs. Republican, or pro-business vs. pro-environmental issue?  I sure don’t understand how.  Can’t Congress please just do something rational here?