Biden officials plot next WOTUS move after Supreme Court ruling

ByBonner Cohen, Ph. D. August 1st, 2023 232 Comments  @ CFACT

Still smarting over the U.S. Supreme Court’s May 25 ruling in Sackett v. EPA, in which the High Court greatly limited EPA’s regulatory authority over “waters of the United States” (WOTUS), Biden officials are scrambling to salvage as much as they can from a rule that once promised to put the feds in charge of millions of acres of private land.

Working on a tight schedule, and facing formidable legal hurdles to the exercise of raw power, Biden officials plan to have a revised WOTUS rule ready by late September. The White House had rolled out a much more ambitious WOTUS rule earlier in the year, but it ran into the buzzsaw of Sackett v. EPA. Like the Obama administration before it, Biden administration officials were hoping to use a broad definition of WOTUS to give EPA and the U.S. Army Corps of Engineers sweeping authority over wetlands and other small bodies of water that connect to “navigable waters of the United States.”

For over a decade and a half, that connection had been what Justice Anthony Kennedy referred to in 2006 as a “significant nexus” to navigable waters. The vague term was a gift to federal regulators who wanted to use it to extend their writ as far as the eye could see. But in its Sackett ruling, the Supreme Court scrapped “significant nexus,” saying instead that wetlands could only be regulated if they have “a continuous surface flow” to navigable waters.

No Public Comment

According to media reports, the new WOTUS rule being crafted by Biden officials will not be subject to public comments. Instead, they will simply strike language from their original proposal—language that is no longer legal under the Sackett restrictions – and hope what is left withstands challenges in court. The regulated community – agriculture, mining, timber, home builders, oil and natural gas developers, and dozens of other industries – has little reason to trust the administration and will be monitoring its every move.

By foregoing public comments, the White House may be trying to play down the significance of what it will be proposing. They have good reason to try to draw as little attention as they can to their next WOTUS steps because their legal position has deteriorated over the past year.

The administrative regulatory state suffered two significant legal defeats in 2022 and 2023. In June 2022, the Supreme Court, in West Virginia v. EPA, ruled that federal agencies must have specific authorization from Congress before they can impose rules whose economic impact will pose a “major question” to U.S. society. In other words, agencies cannot make up rules out of whole cloth. In this year’s Sackett decision, EPA was put on notice that vague language in the Clean Water Act regarding the agency’s jurisdiction over certain bodies of water did not give regulators carte blanche to regulate as they see fit.

Old habits die hard. Having become accustomed to using the federal bureaucracy to impose policies to their liking, the left must now cope with the Supreme Court’s restoration of the separation of powers as anchored in the U.S. Constitution.

Baby WOTUS

The White House is using regulations to eliminate the internal-combustion engine and ban gas stoves and gas-powered water heaters – all of which are being challenged in court. At its core, WOTUS was an attempt to impose federal zoning on private land — a goal so ambitious it will be hard to walk away from. Now, they may have to settle for a Baby WOTUS, in the hope that they can gradually build on that foundation over the coming decades – or at least until they get a Supreme Court more to their liking. Remember, these people play the long game.

Author

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  Bonner Cohen, Ph. D.

  Bonner R. Cohen, Ph. D., is a senior policy analyst with CFACT, where he focuses on natural resources, energy, property rights, and geopolitical developments. Articles by Dr. Cohen have appeared in The Wall Street Journal, Forbes, Investor’s Busines Daily, The New York Post, The Washington Examiner, The Washington Times, The Hill, The Epoch Times, The Philadelphia Inquirer, The Atlanta Journal-Constitution, The Miami Herald, and dozens of other newspapers around the country. He has been interviewed on Fox News, Fox Business Network, CNN, NBC News, NPR, BBC, BBC Worldwide Television, N24 (German-language news network), and scores of radio stations in the U.S. and Canada. He has testified before the U.S. Senate Energy and Natural Resources Committee, the U.S. Senate Environment and Public Works Committee, the U.S. House Judiciary Committee, and the U.S. House Natural Resources Committee. Dr. Cohen has addressed conferences in the United States, United Kingdom, Germany, and Bangladesh. He has a B.A. from the University of Georgia and a Ph. D. – summa cum laude – from the University of Munich.

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