Trump issued an Executive Order yesterday calling for review and revision of the Waters of the United States rule: “Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” What’s the significance of the WOTUS rule? Most generally, it defines the jurisdictional reach of the Army Corps of Engineers and EPA under the Clean Water Act.
The fanfare of this, and other prior Executive Orders, is rather ironic. While the substantive policy decision of the Order to review and revise the rule is of great concern for the environment and public health, putting it in an executive order had little significance. As Richard Revesz was quoted by the New York Times, Trump could have saved himself some time and done the same with a phone call or a tweet. Since the rule was promulgated in 2015, any change or effort to rescind it would have to go through the same notice and comment administrative procedure act process as the original rule. In other words, nothing is going to happen quickly. And once a new rule has been promulgated, it will likely be challenged in court, just as the existing rule is now in litigation.
The other irony of the Executive Order? Section 1 of the Order purports to minimize regulatory uncertainty. Changing this promulgated rule will create new uncertainty about the EPA’s and the Army Corps’ regulatory reach.