Hail to the Chief: John Roberts and the WOTUS Rule

Roberts virtually bemoaned the lack of a rulemaking. Now he’s got what he wanted.

The government issued a long-awaited Waters of the United States rule (WOTUS for short).  No doubt there will be much gnashing of teeth about the issuance of the rule — a very safe bet since the gnashers of teeth got going long before the rule was actually issued.  But one person who should be happy is the Chief Justice.  He’s been criticizing the government for failing to issue such a rule for years.

In the Raponos case in 2006, Roberts made a point of berating the government for failing to engage in such a rulemaking, while also emphasizing that such a rule would receive strong judicial deference.  Here’s what the Chief Justice had to say on the subject in 2006, when he joined an opinion narrowly defining federal power over wetlands:

 Agencies delegated rulemaking authority under a statute such as the Clean Water Act are afforded generous leeway by the courts in interpreting the statute they are entrusted to administer. Given the broad, somewhat ambiguous, but nonetheless clearly limiting terms Congress employed in the Clean Water Act, the Corps and the EPA would have enjoyed plenty of room to operate in developing some notion of an outer bound to the reach of their authority.

    The proposed rulemaking went nowhere. Rather than refining its view of its authority in light of our decision in SWANCC, and providing guidance meriting deference under our generous standards, the Corps chose to adhere to its essentially boundless view of the scope of its power. The upshot today is another defeat for the agency.

    It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis. This situation is certainly not unprecedented. What is unusual in this instance, perhaps, is how readily the situation could have been avoided.

Now the government has delivered on his request, it will be interesting to see how he likes the rule he asked for.

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Reader Comments

13 Replies to “Hail to the Chief: John Roberts and the WOTUS Rule”

  1. Dear Dan,
    The long awaited waters of the United States rule is fake – the EPA only issued another unofficial “pre-publication” version, the final rule has not been issued and it has not been published in the Federal Register. This is another incompetent EPA charade. The EPA is corrupt, it cannot be trusted, it should be defunded.

  2. Dan, if I understand you and your colleagues correctly, American Democracy has now devolved into American Chaos and running out of water is just one of the consequences.

    Whatever happened to We The People, is Washington repeating the kind of problems that resulted in the Declaration of Independence in the first place?

  3. BQRQ, you want to defund the EPA because it released a prepublication version of a final rule while explaining that the rule won’t be effective until 60 days after publication in the Federal Register?

    1. The EPA’s new water rules are a massive regulatory overreach which is based on a false and misleading premise that America’s waters are extremely polluted and getting worse, when the opposite is true. In fact, America’s waters are cleaner and improving. EPA is thoroughly corrupt, it no longer serves a useful purpose and should be downsized and de-funded.

      1. Won’t courts be able to recognize “massive regulatory overreach which is based on a false and misleading premise” as clearly erroneous? If not, why not?

        1. If and when these CWA rules become final then there will be plenty of litigation, the courts will weigh in, and Implementation will be hampered. More importantly, if a Republican administration is elected then there will likely be retaliation in the form of program cut-backs, destaffing, defunding, and nullification of overreaching regulations. This same fate is also likely for Obama’s climate regulations. That’s what gives us hope, the EPA is corrupt.

          1. From what you say, EPA corruption isn’t what gives you hope. Instead, your hope comes from “the courts” and Republican “retaliation”:

            (1) Even if the EPA is not corrupt, if the EPA water rule has overreached “the courts will weigh in” and “[i]mplementation will be hampered.”

            (2) Even if the EPA is not corrupt, “if a Republican administration is elected then there will likely be retaliation in the form of program cut-backs, destaffing, defunding, and nullification of overreaching regulations” (whether or not those regulations would be struck down as legally overreaching by the courts).

            For the purposes of (2) only public perception of EPA corruption (regardless of actual EPA corruption) matters. Even if EPA is not corrupt, if EPA is perceived as corrupt a Republic administration is more likely to be elected and retaliate.

            A desire to make the EPA appear corrupt regardless of whether the EPA is actual corrupt would certainly explain your complaints about the prepublication version of the EPA’s rule being “fake,” “unofficial,” “not published,” and “another incompetent EPA charade.” Why else would one criticize prepublication of agency rules so strongly? Isn’t prepublication of agency rules actually a good thing insofar as prepublication allows citizens notice of their government’s actions, time to prepare legal challenges, and time to rally their compatriots against politically unpopular rules?

  4. WO asked;
    “…… Why else would one criticize prepublication of agency rules so strongly?…..”

    The EPA fabricated a fake pollution crisis to justify these rules and has now issued fake final rules. Last year, EPA issued the proposed water rule for public comment. Normally, a final rule is published in the Federal Register and it becomes effective 60 days later. EPA did not do this. Instead EPA issued a “prepublication version” of the water rule on its website which is not the final rule at all. This is a highly irregular political gimmick which is typical EPA malfeasance and yet another reason not to trust this agency. There is no final rule and there may never be. Many EPA employees spend their working hours viewing pornography because the agency tolerates this practice. The EPA is corrupt.

    1. Calling prepublication of the water rule “fake final rules,” “not the final rule at all,” and “a highly irregular political gimmick” do nothing to explain why prepublication is “malfeasance” and “yet another reason not to trust [the EPA].”

      Granting that prepublication is not common, what harms flow from prepublication? I pointed out concrete benefits—notice, additional time to prepare legal challenges, and additional time to rally political opposition. Are you a fan of less notice of agency rules, less time to prepare legal challenges to agency rules, and less time to politically oppose agency rules?

      You suggest “[t]here is no final rule and there may never be.” If you really believe this, I have an amazing insurance contract (and bridge) to sell you.

      1. WO,
        You make a good point about additional time to prepare legal challenges and rally political opposition. Why not open this so-called “final rule” to public comment? Perhaps the Obama Administration is trying to ascertain how its “final rule” could affect Democrats in the elections (that is why the final rule may not be issued). EPA should standstill until after the
        election.

        1. Dear WO,
          Your line of inquiry is excellent and our discourse elucidated this complicated subject matter. Enjoyed working with you – bqrq

          1. (I’ll note that I originally posed a much more combative response to your first post. I’m happy that more combative post never actually seems to have been published and that we got to have our more productive discussion instead.)

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Dan Farber

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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