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Legal Dilemma in Public Administration

Legal dilemmas in the administrative procedures arena of public administration can significantly affect the federal government and the president of the United States. The administrative procedures of an agency are supposed to be in line with administrative law. Legal dilemmas occur when there is a disconnect between administrative procedures and the pressure to perform or meet different deadlines. In some cases, the public perceives political influence in the different processes. Administrative law exists to guide the administrative procedures of agencies. There are several cases where legal issues have come up during the administrative processes. One of a more recent case is the rulemaking process of the Waters of the United States (WOTUS). Several court cases and concerns have come up during the implementation process of this rule. A lot of the issues have been linked to the change in government from the Obama to the Trump administration. This paper investigates the WOTUS rule (formation, rulemaking, and other developments) and its potential impact on the federal government and the president of the United States.

Background Information

The definition of the WOTUS originates from the Clean Water Act which was developed in 1972 after the amendment of the 1948 Water Pollution Control Act (The Environmental Protection Agency (EPA), 2017). According to Stanis (2017), the Clean Water Act (1985) defined WOTUS as navigable waters. This definition was vague and marked the beginning of the debate on the interpretation of the WOTUS. Navigable waters refer to water bodies that are suitable in terms of depth, width, and movement (it must be slow) for a vessel to pass through them. Several water bodies fall under this category, and there are no specific ways of determining which water bodies cannot be classified as navigable. At the time, the Clean Water Act addressed the question of dumping pollutants which affected most industries. As a result, several people and organizations took the matter to courts seeking to understand the definition of WOTUS further.

One of the most recent cases was Rapanos v. United States (2006). This case led to the development of a definition of WOTUS that went beyond the navigable factor established in 1972. Justice Scalia presented the opinion of four justices. In this opinion, he stated that the definition of WOTUS goes beyond navigable water to include the traditional sense (Covington, 2007). Here, the traditional sense includes other factors like the state of the water body (permanent, moving or standing) and the feature formed (ocean, lake, or river). Additionally, Justice Scalia stated that the “Corps lacks jurisdiction over the wetlands in these cases and recommending remand to the Sixth Circuit for consistent proceedings” (Covington, 2007 p.804). Justice Stevens wrote the dissenting opinion. Here, he stated that the Corps had jurisdiction over the wetland (Covington, 2007). Finally, Justice Kennedy read the third opinion. In this opinion, Justice Kennedy agrees that the definition of WOTUS went beyond bodies that are traditionally considered navigable. Ultimately, the case was remanded back to the Sixth Circuit.

While this case expounded the definition of WOTUS, it did not generate any specific ways of determining which water bodies fall under these conditions. The lack of clarity regarding the definition of WOTUS still existed. As a result, the Army Corps of Engineers and the EPA developed the Clean Water Rule in 2015 (Stanis, 2017). The goal of this Rule was to include specific factors in the definition of WOTUS. The Clean Water Rule provides seven different descriptions to interpret the WOTUS. According to the Environmental Protection Agency (2018), some of these descriptions include

(1)All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide. (2) All interstate waters including interstate wetlands. (3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters (Sect.2 lines.1-8)

All these descriptions were clear compared to previous definitions offered in the Clean Water Act. However, the implementation of the Clean Water Rule has experienced several challenges with different parties suing the Army Corps of Engineers and the EPA. President Donald Trump even issued an executive order that directed the Department of the Army and the EPA to either repeal or revise the Clean Water Rule.

Significant Actions on the 2015 Clean Water Rule

Almost immediately after the publishing of the publishing of the Clean Water Rule, more than 25 states sued the EPA in federal courts in Columbus, Savannah, Houston, and Bismarck (Harvard Environmental Law Program, 2018). A new call for the restoration of the status quo before the existence of the Clean Water Rule also came up in court. As a result, the Sixth Circuit placed a hold on the rule which applied across the nation. The high number of challengers and cases led to the battle of where the cases should be heard. For example, the Sixth Circuit was of the opinion that only the courts of appeal should hear the challenges to the Clean Water Rule (Harvard Environmental Law Program, 2018). The Supreme Court accepted to hear this matter in January 2017 and helped resolve it in January 2018. The Supreme Court ruled that the cases should be heard in the district courts and not the court of appeal (Harvard Environmental Law Program, 2018). This ruling might have contributed to the lifting of the 2015 hold on the Clean Water Act.

Other significant actions and changes occurred and continue to happen primarily in the Trump era. The U.S Army Corps of Engineers and the EPA expressed their intent to “rescind or revise” the Clean Water Rule through a publication in March of 2017 (Harvard Environmental Law Program, 2018). Later in that same year, the EPA and the Corps came up with a new proposal to repeal the Clean Water Rule and return to the uncertainty of previous times. Part of this new proposal was the idea to develop a new rule that puts into considerations the opinions of the Supreme Court in Rapanos v. United States. This new rule would be less specific by generalizing what qualifies to be called waters of the United States. The months that followed saw the proposal to delay the effective date of the Clean Water Act of 2015. This proposal was finalized in 2018 giving the EPA up to 2020 to have the next best step. Some people viewed this delay as a good move towards achieving a middle ground on the issue. On the other hand, some people and groups sued the EPA on the matter.

Current Situation

At the moment, the Clean Water Rule is still under development. The EPA and the Army Crops are currently working on the improvement of the rule. The two agencies are making sure to inform the public on all possibilities. The most dominant possibility is that the EPA and the Army Corps could do away with the Clean Water Rule and go back to the regulations and descriptions that were in use before 2015 (Harvard Environmental Law Program, 2018). The EPA and the Army Corps even placed the new proposal up for commenting between 12th July 2018 and 13th August 2018.  The notice and comment process is part of the rule-making process as stipulated in the Administrative Procedures Act (Cooper, 2007). This process is crucial and must include as much expert and public opinion as possible. However, the EPA is already being accused of breaking the rule-making process during the cancellation of the new program. The result was two courts enjoining the implementation of the Clean Water Rule in states where judges had not ruled against it.

The Implications

The clarification of the meaning of WOTUS is meant to make it easy for companies to avoid breaking laws when dumping wastes into water sources. The primary goal of the Clean Water Rule is to offer a guideline that adheres to the principles explained in the Supreme Court in 2006. After taking a look at the definitions, it is clear that most of them are guided by the judgment of the Supreme Court with a little more detail than usual. A repeal of the new rule means that the agencies will go back to their practices of relying on the vague guidelines on previous cases combined with expertise in different fields to determine the whether a water body fell under WOTUS or not (Harvard Environmental Law Program, 2018). It appears that the most significant part of the process remains the interpretation of unique situations rather than the imposition of a few specific rules.

On the other hand, there is the problematic legal claim that the EPA did not adhere to public administrative law procedures during the cancellation of the Clean Water Rule. The argument here is that the public should have been given more time to participate in the comment sessions before announcing the rule would be repealed (Stanis, 2017). Regarding this issue, it is clear that the EPA was under pressure to ensure that the rule would address all the doubts without straying away from the guidelines of the Supreme Court. In the end, the final rule developed by the EPA was bound to offend some people just as much as it would please others. The traditional status quo placed power in the hands of the agency to determine whether or not the wetland can be classified as WOTUS or not (The Environmental Protection Agency, 2018). In this case, the EPA did not take that responsibility away. It only added to the specific factors describing WOTUS.

The implications on the government would only be serious if the government got directly involved. In this case, the president already got involved through the issue of an executive order on the matter. It was necessary for the president to get involved because the issue of waters of the United States falls under the responsibilities of the federal government. The EPA is the expert consultant and, sometimes, overseer that ensures that the policies are favorable for the country now and in the future. The expert opinion of the EPA is necessary when providing evidence and information on various environmental issues in a non-partisan manner. In the development of the Clean Water Rule, the EPA did its due process in informing the people and welcoming comments during the development of the rule. It is during the cancellation of the rule that the agency overlooked some important processes in due process. Therefore, the courts made the right decision by reversing the hold on the rule in regions where the courts had not made a direct ruling on the matter. This step shows the value for administrative laws and administrative processes by all areas of government. Ultimately, the legal issues surrounding the definition of the WOTUS will continue to exist due to the vagueness of historical cases. It is safe to maintain the status quo that allows the agencies to decide on a case-by-case basis.

References

Cooper, P. J. (2007). Public Law and Public Administration. Belmont, CA: Thomson/Wadsworth.

Covington, C. (2007). Rapanos v. United States: Evaluating the efficacy of textualism in interpreting environmental laws. Ecology Law Quarterly, 34(3), 801-836.

Harvard Environmental Law Program. (2018). Defining Waters of the United States / Clean Water Rule – More Information. Retrieved from Environmental Law at Harvard: http://environment.law.harvard.edu/2018/07/defining-waters-united-states-clean-water-rule-information/

Stanis, T. (2017, Mar 2). Drain the Swamps: A Brief History of “Waters of the United States” and the Trump Administration’s Attempt at Defining the Term. Retrieved from Georgetown Environmental Law Review: https://gelr.org/2017/03/02/drain-the-swamps-a-brief-history-of-waters-of-the-united-states-and-the-trump-administrations-attempt-at-defining-the-term/

the Environmental Protection Agency (EPA). (2017, Aug 8). History of the Clean Water Act. Retrieved from the Environmental Protection Agency: https://gelr.org/2017/03/02/drain-the-swamps-a-brief-history-of-waters-of-the-united-states-and-the-trump-administrations-attempt-at-defining-the-term/

The Environmental Protection Agency. (2018, Sept 18). Waters of the United States (WOTUS) Rulemaking: About Waters of the United States. Retrieved from The Environmental Protection Agency: https://www.epa.gov/wotus-rule/about-waters-united-states