WOTUS Rulemaking: A NEPA Goose or Gander?

Migratory birds take note: Your adjacent waters and tributaries may come down to a NEPA doctrine.

There are, so far as the Lab’s learned, now five law suits that’ve been filed challenging EPA and the Corps’ recent “waters of the United States” (WOTUS) rulemaking.  In only one of them—that by North Dakota in the federal district court for North Dakota—is a claim mounted alleging the agencies violated NEPA in promulgating the WOTUS rule as it did.  It’s a bit remarkable because the rule itself was only published in the Federal Register on June 29 and won’t become effective until August 28.  The states of Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming and two New Mexico agencies joined that suit and 14 other states have joined some suit.

Of the five lawsuits, the North Dakota suit seems best calculated to obtain results, though.  Allegations that EPA and the Corps overreached in its definition and thus violated the Clean Water Act are common to all five.  A Tenth Amendment challenge alleging the government is infringing some traditional incident of state sovereignty is found in 4 of the 5.  And the claim that the agencies’ interpretation extends beyond their Commerce Clause authority appears in 4 of the 5 suits, too.  Indeed, claims that the ambiguous Clean Water Act (CWA) forecloses the rulemaking’s interpretations are urged with such conviction in these complaints that it’s easy to forget the issue may stand alone in the rancor it’s provoked from SCOTUS over the years (which is saying something): in a 5-4 case in 2001 and then a 4-1-4 case in 2006, our highest court has now twice failed to make virtually anything clear about what “waters of the United States” as it’s used in the CWA can mean.  So it can’t really be that clear, now, can it?

NEPA Claims in the N.D. Suit

In any event, there is North Dakota’s NEPA claim.  Often thought of as “NEPA for the gander,” like the old adage about migratory waterfowl, North Dakota asserts that the agencies failed to observe NEPA’s procedural requisites in their rulemaking.  The turnabout is that the Clean Water Act and this rulemaking in particular are designed to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”  33 U.S.C. § 1251(a).  In other words, they’re supposed to be *good* for the environment.  Whatever “impact” this rulemaking will or will not have, it should be beneficial.

North Dakota and its band of angry plaintiffs allege that it’s the procedure(s) that count—not the (subjective) goodness or badness that might result from this “major federal action.”   CWA § 511(c), 33 U.S.C. § 1371(c), states in relevant part that

“[e]xcept for [two things the WOTUS rulemaking certain is not], no action by the Administrator [of EPA]taken pursuant to [the CWA] shall be deemed a major Federal Action significantly affecting the quality of the human environment within the meaning of [NEPA] . . . .”

Now we might think that that’s the end of the matter.  EPA is making this rule—in conjunction with the Corps of Engineers—so isn’t it exempt from NEPA?  Not so fast: the provision only exempts EPA and this is a rulemaking by EPA and the Corps!  So if the literal text of the statutory exemption can be evaded, what about any case law on point?

Functional Equivalence?

In Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the court created a practical test for sorting out NEPA’s application to actions aiming to protect the environment pursuant to statutes meant to protect the environment.  There the Department of Interior was finalizing a critical habitat designation under the Endangered Species Act (ESA) and hadn’t prepared any NEPA documents.  The court held that it wasn’t required to because ESA § 4(b) required Interior to observe essentially the same public participatory procedures as NEPA, and because the designation turned on the same basic trade-offs NEPA raises, and because the underlying statute entrains the agency toward environmentally-protective ends.  The D.C. Circuit had once exempted EPA under a theory that the Clean Air Act standard setting at issue in the case was similarly the “functional equivalent” of NEPA § 102(2)(C) and that, as a result, NEPA would add almost nothing to the decision-making process in that case.  See Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973).

In our case, the Corps prepared an environmental assessment and finding of no significant impact (EA/FONSI)—seemingly in accordance with NEPA § 102(2)(C).  Any number of judicial doctrines could support a FONSI in these circumstances.  Most likely, the jurisdictional nature of the legal change means that any regulatory action actually affecting the environment will be where NEPA’s “hard look” requirements will apply.  And that won’t be until regulatory action is taken against some given party or parties.

Is the WOTUS rulemaking as a whole exempt from NEPA?  Given the procedures EPA and the Corps observed and the analyses they both produced and used to inform their decisions, a court remanding or vacating this rulemaking for failure to generate an EIS would have a lot of explaining to do.  Of course, it’s never too early to peak ahead to the SCOTUS appeal of the WOTUS rule (assuming Congress doesn’t find a way to deep six it first).  The swing voters, Chief Justice Roberts and Justice Kennedy, should be supportive (Roberts because he seemed adamant in 2006 that a rulemaking was the answer and Kennedy because he was convinced something “substantial” had to connect any covered geography to the statute’s purposes).


{Image: prairie potholes by the North Dakota State Historical Society}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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