The NWPR had replaced the Obama administration’s 2015 Clean Water Rule for interpreting the “waters of the United States” (WOTUS) under the 1972 Clean Water Act.
The district court decision was met with concern from Matthew Leopold, who assisted in creating the NWPR as EPA general counsel under Trump.
“I think that it’s fairly unprecedented to vacate a duly promulgated federal regulation, like the Navigable Waters Protection Rule, without undertaking a review of the rule itself and how it relates to the authority under which it was promulgated, which is the Clean Water Act,” Leopold told The Epoch Times. “The judge’s order is very short.”
Leopold thinks case law from the 9th Circuit Court, under which Arizona’s district court falls, and other circuits around the country would suggest that Márquez, an Obama appointee, should have taken additional steps before granting the remand with vacatur.
“In light of your administration’s strong concerns about the adverse impacts of the Trump rule, we urge you, nonetheless, to proceed to remove the NWPR administratively through a formal notice and comment rulemaking on the basis of its fundamental policy failings,” the senators wrote. “We also urge the agencies to narrowly tailor their removal of the NWPR in order to restore safeguards for those waters that have been protected since the 1980s.”
“This opinion highlights EPA’s lack of transparency around repealing and replacing NWPR,” Capito said. “For months, I have asked EPA and the U.S. Army Corps of Engineers to provide any specific examples of any actual environmental harms occurring under NWPR, yet none have been provided. While the ruling cites ’the possibility of serious environmental harm if NWPR remains in place,' there hasn’t been any evidence from either agency to support the claim.
“Administrator Regan promised transparency regarding the repeal of NWPR. However, his failure to follow through on that promise with any scientific data or specific examples has led us to this court’s decision based on the opinion of activists.”
Leopold said that he believes that the decision could be overturned on appeal.
“The EPA has been clear that they believe the [NWPR] rule is not as protective as they would like it to be,” he said. “Administrations can change policy, and that’s well established in case law.
“The question in Arizona, though, is about respecting that rule-making process, which is deliberate and well-considered and not having rash decisions that are not well supported vacating rules without going through the proper process.
“I think there are legitimate arguments that this decision could be overturned on appeal. I think it would be appropriate for the litigants to file additional briefing requesting clarification of the judge’s order, and/or file appeals raising the standards that the 9th Circuit has articulated in order to grant remand with vacatur.”