The WOTUS Rule Deserves Better Judging

Earlier this week, a federal district court in North Dakota enjoined implementation of a major Clean Water Act rule. The rule, which EPA and the US Army Corps of Engineers jointly enacted late in 2022, would determine which aquatic features are subject to Clean Water Act jurisdiction. In other words, it determines which waters are protected by the Act.

As environmental lawyers know well, this has been a subject of continuous dispute for many years. The 2022 rule was designed to bring the disputes to an end, and to do so by reinstating and clarifying traditional jurisdictional standards. With this decision, and with a similar recent decision from a federal district court in Texas, that stability seems increasingly unlikely.

To casual observers, this might seem like the latest turn of a broken record. But the case is worthy of closer attention, for it signals just how dramatically conservative judicial culture has shifted and how much we are losing in that shift. The decision is remarkable, even by present standards, in its level of disdain for the work of Congress, traditional administrative law doctrine, and the efforts and expertise of administrative agencies.

Consider a not-so-short list of examples:

• Early in the opinion, the court sets the tone for its discussion, asserting, without source support, that “the Clean Water Act, and the varied and different definitions of ‘waters of the United States,’ have produced nothing but confusion, uncertainty, unpredictability, and endless litigation throughout the country to date.” That statement is a remarkable dismissal of a landmark and still-popular statute—and of all the work thousands of people have put into implementing the law. It also is false. In addition to producing some litigation, the Clean Water Act has helped clean up many of the nation’s waters and has protected thousands of streams and wetlands from being filled.

• Likewise, the court claims, early on, that interpretations of Clean Water Act jurisdiction have “spawned a vast array of regulations.” But the current regulations governing jurisdiction are three pages long (the explanatory preamble is longer, as is typical, but the preamble is not a regulation). The regulations would be even shorter except that the same words are repeated in two different parts of the Code of Federal Regulations. That is not a vast array.

• The problems aren’t just with framing statements. In the body of its opinion, the court repeatedly takes the agencies to task for following governing Supreme Court and Eighth Circuit authority. For example, the court castigates the agencies for saying that jurisdiction can be established by considering the cumulative effects of protecting “similarly situated” aquatic features. Those words come directly from Justice Kennedy’s Rapanos opinion, which, as the court acknowledges, is governing law in the Eighth Circuit. Likewise, the court expresses exasperation that the rule would cover wetlands that do not have a permanent surface connection to navigable-in-fact waterways. Yet both Justice Kennedy’s and Justice Scalia’s Rapanos opinions acknowledged that jurisdiction should exist for some waterways that do not always have continuous surface connections to navigable-in-fact waterways.

• Other critiques are just bizarre. Somewhat in passing, the court holds that the rule is unconstitutionally vague. In part, this is because the rule does not define key terms, like “chemical, physical, and biological integrity”—which, as most readers will know, is how the statute itself defines “water quality.” I have never heard of an administrative rule being held unconstitutional because it directly quotes statutory language and does so without defining every word in that language. Also feeding into the court’s vagueness analysis is the fact that the rule uses words the court finds deeply confusing. Its list of offending terms: “adjacent, certain times of year, interstate waters, impoundments, material influence, mosaic, relatively permanent, seasonally, significantly affect, significant nexus, similarly situated, and tributaries” (internal quotation marks omitted). I suspect you knew what all those words meant without looking any of them up. And if you wondered about any phrase, it’s probably “significant nexus,” which the agencies had to use because that phrase comes from governing Eighth Circuit and Supreme Court authority. Apparently the agencies were obliged to play Clean-Water-Act Taboo, with the list of forbidden everyday words known only to the reviewing court.

• Lurking deeper beneath these vagueness arguments is an implicit and troubling assumption. That assumption is that a law is unconstitutionally vague if there is any ambiguity about its application—and that this ambiguity can be judged without even considering how the implementing agency seeks to provide clarity to regulated entities. But legal systems are filled with standards that are not, and cannot be, models of precision. For a familiar example, consider sports rules. What’s the difference between a hold and a legal block in football, or where is the line between legitimate physicality and unnecessary roughness? What’s the difference between a charge and a block in basketball? What merits a red card in soccer? In all of these settings, for the system of rules to function, we have to give expert referees some discretion to make judgment calls. Or consider criminal law, where the court seems to think any ambiguity is intolerable. Many crimes—think of criminal negligence, reckless endangerment, drunk and disorderly conduct, or fraud—have boundaries that are difficult to specify with complete precision, but still they are, and should be, crimes. The same reality exists for water; the rules for setting jurisdictional boundaries cannot be obligated to supply perfect advance clarity in all circumstances. Yet the court seems to view such clarity as a matter of constitutional necessity.

• Like the federal district court in Texas, the court holds that exercising Clean Water jurisdiction over all interstate waters, and thus protecting them from pollution, is unconstitutional, and that this exercise of jurisdiction is unconstitutional because it trammels upon federalism. The original federalists would be totally bewildered by this claim. They replaced the Articles of Confederation with the United States Constitution largely because they wanted to empower the federal government to address interstate problems, not because they wanted to prevent the federal government from doing so.

• At one point, the court asserts that “it is doubtful that Congress endorsed the present attempts to expand the limits of the Clean Water Act.” As evidence, the court cites, not statutory language or legislative history of the Clean Water Act and its amendments, but a recent Congressional resolution, which President Biden vetoed, disapproving the rule. The court did not explain how unenacted legislation from 2023 is evidence of legislative intent in 1972, 1977, or 1986. Nor did it acknowledge that what it calls a present expansion is not really an expansion. The rule’s jurisdictional standards are consistent with standards that have been in place, almost without interruption, since 1975, that were more expressly codified during the Reagan Administration. If post-enactment legislative history is evidence of anything, perhaps the best evidence is that Congress has never enacted legislation changing those longstanding standards.

• The court holds that the final regulation fails the logical outgrowth test (which ensures that final regulations are logical outgrowths of proposed regulations) because it is too different from the proposed regulation. As evidence, the court cites the final regulation’s use of the words “wetland mosaic” and “catchment.” But these words do not appear in the final regulation. They appear in the preamble. No administrative law principle tells agencies they cannot use words to explain a final regulation unless those words were used to explain the proposal. The court also cites the emergence of the phrase "material influence" in the definition of "significantly affect." But the court never even tries to explain how fleshing out the definition of one sub-term makes the rule fail the logical outgrowth test. The implicit reasoning is that a final rule cannot have any new words. And that is definitely not the law.

• Also in passing, the court holds that the regulation is suspect under the major questions doctrine. As articulated in recent Supreme Court decisions, the major questions doctrine applies in “extraordinary” cases in which agencies use ambiguous statutory language to launch bold, high-impact initiatives, and in which those agencies have strayed beyond their traditional areas of expertise. Even if one thinks the doctrine makes sense—it has many critics (one example here), and the critics have their reasons—this is clearly not a major questions doctrine case. As the court itself acknowledges, there is no longer anything extraordinary about litigation over the geographic scope of Clean Water Act coverage. And the agency regulation at issue implicated core areas of agency expertise and was consistent with almost fifty years of jurisdictional standards.

A final point is broader. In theory, a judge considering any case should consider the arguments of both parties. This opinion lacks such balance. Most of the opinion consists of summarizing the arguments raised by challengers—or quoting them directly, often at length—and then adopting those arguments, with not even a mention of the contrary positions asserted by the United States. Cites to the administrative record documents or statutory provisions amply supporting the United States’ positions are equally rare. The underlying assumption seems to be that the agency’s factual and legal arguments don’t matter because any accusation against a federal agency, if it comes from conservative-state attorney generals, must be true.

And that, of course, turns administrative law on its head. A basic premise of administrative governance is that agencies can use their expertise, resources, and time to craft rules that are consistent with statutory authority and with the public interest. A related and also-basic premise is that judges, when carefully reviewing those agency actions, will remember that they do not know as much about the subject matter, do not have as much time to develop that understanding, and were not delegated implementation authority by the political branches. Deference, in other words, flows from humility and democracy. In crafting the 2022 rule, the agencies honored that premise; it builds on years of careful work. In a slapdash opinion setting the rule—and much of administrative law—aside, the court did not.

- Dave Owen