Cry Me a River

By Noah Rothman

Friday, January 24, 2020

The Trump administration is at it again. To hear New York Times reporter Coral Davenport tell it, this White House is engaged in yet another nihilistic assault on the environment.

This week, the administration “finalized a rule to strip away environmental protections for streams, wetlands, and groundwater,” the Times notes. The rollback of the “Waters of the United States” allows disreputable landowners to “dump pollutants” “directly into hundreds of thousands of waterways.” The move will prove a boon to farmers, land developers, fossil-fuel producers, and, conspicuously, golf course owners. Moreover, these weakened environmental protections provide the president with “a major policy achievement to bring to his political base while his impeachment trial continues.”

Without being stated plainly, a clearer portrait of nefarious self-dealing could not be more clearly implied. There’s a reason the author limits herself to implication, though, and it isn’t reportorial standards of impartiality. The truth of the matter isn’t nearly as lopsided as the Times suggests.

In May 2015, the Environmental Protection Agency unilaterally announced its intention to expand its capacity to regulate navigable waterways and their tributaries. This new rule allowed the agency to block the development of privately owned lands with a “significant nexus” to a waterway, a definition so expansive it included streams that ran only seasonally or underground, bone-dry 100-year floodplains, any parcel within 1,500 feet of a highwater mark, or even topographical features that could “in combination” impact a water source.

This wasn’t the first time the EPA had overstepped its remit when it comes to the nation’s waterways. The 2006 Supreme Court plurality opinion in Rapanos v. United States struck down the regulatory agency’s expansion of the definition of what constitutes a waterway. That definition went beyond what Justice Antonin Scalia said were only those “relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’” like streams, lakes, rivers, and oceans. But the EPA was undeterred and, in 2015, the agency tried again.

Landowners understandably feared that this permissive new definition of what constitutes a waterway could apply to almost any soggy plot. And if affected landowners wanted special dispensation, they would have to appeal to the EPA and the U.S. Army Corps of Engineers for permits, which were to be considered only on an individual basis. In practice, a rancher and farmers seeking the permission of the federal government to level a road through private property or even plow and plant crops would have to spend tens of thousands of dollars on compliance costs alone. That’s not a hypothetical; it was the experience of Arizona rancher Jim Chilton.

In testimony before Congress, Chilton noted efforts to seek a permit to grade a “small ranch road” through his land took three years and cost him $40,000 dollars, even though the nearest body of water on which anything substantial could float was over 250 miles from his property. The process involved surveyors, assessors, permit-writing consultants, environmental engineers, and, of course, lawyers. Ultimately, the effort became so time-consuming and expensive that the project was abandoned.

The predictable effect of this rule was to make the land in private hands far less useful and, therefore, less valuable. The prohibitive burdens placed on landowners were, in the not undue estimation of this regulation’s critics, the point of the exercise.

Chilton’s experience was not unique. Before 2006, as one study found, “the average applicant for an individual Clean Water Act permit spends 788 days and $271,596 in complying with the current process…” That absurd burden on landowners and developers is of little concern to environmental enthusiasts and activist bureaucracies, but the judiciary takes a dimmer view of this infringement on property rights.

Several state attorneys general immediately sought an injunction against the EPA’s new rule, which they claimed violated the Administrative Procedure Act, the Clean Water Act, the Commerce Clause, and the 10th Amendment. That August, a federal judge granted that injunction to 13 of the 31 states that sought it, and the Sixth Circuit Court of Appeals affirmed that decision in October, extending the stay nationwide. That court found that “the rulemaking process by which the distance limitations were adopted is facially suspect.” The agency cited no “specific scientific support substantiating” this regulation’s rationality. Finally, the EPA had failed to craft a rule that could produce consistent and predictable results.

The Trump administration sought the Supreme Court’s guidance on the matter but, in 2018, the Court determined that such cases should be limited to federal district courts. So, last September, in response to an executive order, the EPA proposed a new regulatory structure over waterways that conforms with the plurality decision in Rapanos. All this backstory would come as a surprise to a reader of the Times’ version of events. Nor is the move likely to result in a new flood of poisons into America’s waterways, as the EPA’s 2015 rule was never fully implemented.

Necessary environmental protections will often come into conflict with the equally necessary preservation of private-property rights. That balance is a delicate one, and environmentalists have every reason to believe that this administration errs too frequently on the side of property owners and business interests. But the last administration’s over-reliance on unresponsive bureaucratic agencies to achieve that which the political process could not infringed on the rights of U.S. citizens in a way the courts would not abide. Opponents of the Trump administration should take stock in how soundly their overreach was rebuffed. To judge from the Times coverage of the administration’s actions, though, that kind of self-reflection is not in the cards.