Trump’s executive order on the Waters of the U.S. rule threaten clean water protection and cause chaos for both industry and environmental advocates.
Trump is bound and determined to undo all the environmental protections signed into action by former President Barack Obama; and Tuesday, the former reality TV show host took another stab at the environment by attacking clean water regulations.
An executive order signed by Trump begins the first step in rolling back clean water rules put into place by the Obama administration. Conservatives and industry advocates for agricultural and construction companies have fiercely opposed the law, and Trump claims that it is a burden to business growth.
The Waters of the U.S. (WOTUS) rule focuses on maintaining and protecting the health of flowing rivers and tributaries that may impact water sources downstream.
As reported by POLITICO, Trump called the rule “one of the worst examples of federal regulation” during the signing ceremony, attended by new Environmental Protection Agency (EPA) administrator, Scott Pruitt. According to The Huffington Post, Pruitt has sued the EPA 13 times as attorney general of Oklahoma, which makes his appointment to head the agency questionable at best. Trump has called for the elimination of the EPA, and his pick to run the department sounds its death knell.
During the signing ceremony, Trump said:
“It was a massive power grab. The EPA’s regulators were putting people out of jobs by the hundreds of thousands, and regulations and permits started treating our wonderful small farmers and small businesses as if they were a major industrial polluter. They treated them horribly. Horribly.”
NBC News reports that the rule was signed by President Obama in May 2015, and went into effect in August 2015. However, the law, meant to clearly define which bodies of water were subject to regulation by the EPA, was caught up in a number of lawsuits resulting in a stay on the law being issued.
This makes Trump’s Tuesday executive order not much more than a photo op. Currently, a Bush-era law is being used to determine which waterways are protected, according to Michael Kelly, director of communications at Clean Water Action, who is naturally disappointed that the new rule is being permanently shelved. Kelly told NBC that Trump’s executive order is “putting industry that pollutes our water ahead of public health.”
Marissa Knodel of Friends of the Earth also criticized Trump’s move as putting “American lives at risk so that polluters can profit.” Knodel told NBC that the water rule is:
“[G]rounded in science and the law, so that our streams and wetlands can keep us healthy and safe, provide habitat for fish and wildlife, and beautiful places to recreate. In contrast, Trump’s dirty water order is dangerous and illegal, based on corporate greed and unlawful environmental pollution.”
National Public Radio reports that simply signing away the Obama-era rule isn’t going to be sufficient. A report by Greg Allen of NPR quotes Jon Devine, an attorney with the Natural Resources Defense Council, who says that an executive order can’t overturn the clean water rule alone; the EPA would have to restart the process to clarify which bodies are protected under the rule. Allen’s report of late January reveals that the Water Rule also affects Trump’s businesses, particularly his golf courses and resorts. According to the report, many of the streams and ponds on Trump’s golf courses would require a permit in order to apply fertilizer or herbicides.
Devine told NPR:
“Repealing a rule requires a full public process and has to be justified by the law and the evidence available. And in the case of the clean water rule, that’s going to be rough sledding for the Trump administration.”
Trump’s new executive order instructs the EPA and Army Corp of Engineers to review the clean water rule and either revise it or begin the process of rescinding it, according to POLITICO. This would require the agencies to justify any changes, which would also open them up to possible lawsuits over any change by environmental protection groups.
Gina McCarthy, the former EPA administrator who developed the water rule under the Obama administration says that the Trump administration is going to find it difficult to justify any changes.
McCarthy said in a statement:
“An Executive Order may give the illusion they’re fulfilling a campaign promise to gut the EPA, but it doesn’t ‘trump’ a rule. The only thing these orders do is make clear this administration will defer needed public health protections for the American people for the sake of partisan politics.”
It’s likely that any new rules would end up under the jurisdiction of the Supreme Court, as it did for Rapanos v. United States in 2006 when Justice Anthony Kennedy set a test in his written opinion for determining whether a waterway was under federal protection by the effect it had on downstream water. The Obama administration revision of the rule was written to the Kennedy test, as was the 2008 George W. Bush version of the rule.
Justice Antonin Scalia also issued a written opinion for Rapanos v. United States that would severely limit the number of waterways protected by the EPA. According to POLITICO, it would leave a number of Western rivers and wetlands off limits to federal regulators.
At this point, the George W. Bush guidelines stand. However, without clear guidelines as to which waterways are protected and which are not, permits are addressed on a case-by-case basis, making the process inconsistent and time consuming. Neither the construction industry nor environmental advocates are satisfied with the ambiguity of the George W. Bush guidelines or the burden of the process.
Once again, Donald Trump uses a sledgehammer where a scalpel is required – showing that, regardless of the complexity of the situation, he truly believes that the simple act of signing a piece of paper will “Make America Great Again.” Or perhaps it will simply make it easier for him to fertilize his golf course grounds.
Featured Image: By Office of the President of the United States – https://twitter.com/realDonaldTrump/status/823950814163140609, Public Domain, Link