This morning, Juan Carlos Rodriguez reports in Law 360 what EPA administrator Regan had previously suggested – that the Biden administration apparently thinks the eighth time can really be the charm when it comes to the EPA’s efforts to determine the scope of Federal Clean Water Act by regulation.
In pending litigation in Massachusetts challenging the EPA’s seventh attempt, the EPA asked the Federal Court to remand the case to the EPA for further action and to maintain the seventh attempt as law in the interval.
It reminds me of a scene from the classic movie My cousin Vinny when Vinny says about passing the bar exam, “for me six times was the charm”. The difference is that Vinny passed the bar exam on this sixth attempt when there is absolutely no reason to believe that an eighth rule set by the EPA will do anything but lead to more litigation. and continued confusion in the longest-running controversy in environmental law.
Mr Rodriguez’s report covers all the bases well, except his story begins in the middle. It takes all the way back to the Carter administration to tell the full story of the EPA’s efforts to do through regulation what Congress has not done through legislation. Sadly, the only thing more unlikely than the possibility that the EPA’s eighth time is the spell is the possibility that Congress will resolve the scope of the Federal Clean Water Act once and for all.
After the Obama and Trump administrations have spent years crafting their own rules to define what are referred to as “US waters” under federal oversight, President Joe Biden’s administration will make its own decision. on the matter, in the hope of arriving at a definition. which will last beyond his term.