This Article will discuss the procedural and substantive flaws in the three rulemaking efforts by the agencies. One or more of the rules (or the 2015 rule) will likely be litigated for the next several years and, ultimately, it is likely that the question of the scope of the federal government’s jurisdiction over “waters of the United States” will return to the Supreme Court. However, since challenges to those rules must originate in Federal district courts, it could take some time before the question returns to the Court.
Part II of this Article discusses the 2015 rule, including the motivation for the rule, the development of the rule, public and congressional reaction to the rule, legal challenges to the rule, and President Trump’s reaction to the rule when he took office. Part III of the Article discusses the limits imposed on agencies when they change regulations and briefly discusses the numerous instances when the Trump Administration has failed to comply with those limits. Part IV of the Article outlines the efforts taken by the Trump Administration to repeal and replace the 2015 rule and Parts V through VII examine the procedural and substantive flaws in each of the three rulemaking efforts. Finally, Part VIII ponders the fate of a WOTUS rule should one be ultimately reviewed by a Supreme Court that has added several new members since the Court last ruled on the scope of the Clean Water Act’s jurisdiction over “waters of the United States.”
Stephen M. Johnson, Killing WOTUS 2015: Why Three Rulemakings May Not Be Enough, 64 St. Louis U. L.J. 373 (2020).