All Posts from December 21, 2018

Legal Challenges Expected for New WOTUS Rule; Supreme Court Precedent Cited

The new Waters of the U.S. (WOTUS) rule that the U.S. Environmental Protection Agency (EPA) and the Department of the Army unveiled on Dec. 11 (GM Dec. 14, p. 1) is likely to face legal challenges in the lower courts and may ultimately by crippled by a U.S. Supreme Court precedent, according to several legal scholars interviewed by Bloomberg Environment.

The new rule, which would replace the contentious 2015 WOTUS definition developed by the Obama-era EPA, significantly narrows the types of water bodies that fall under Clean Water Act (CWA) jurisdiction. Acting EPA Administrator Andrew Wheeler said it is “clearer and easier to understand” and will result in “significant cost savings, protect the nation’s navigable waterways, and reduce barriers to important economic and environmental projects.”

According to Bloomberg Law, the Supreme Court opinion in question was written by now-former Justice Anthony Kennedy in the 2006 case Rapanos v. U.S. In that 4-1-4 decision, Kennedy said the CWA applies to water bodies that are navigable or have a “significant nexus” to a navigable water. The Kennedy opinion was used as the basis for the 2015 WOTUS definition, and has been cited by several appeals courts as the key test to determine the federal government’s oversight of rivers, lakes, estuaries, and other bodies of water.

The Trump administration’s proposal to redefine WOTUS separates regulated waters into six categories and emphasizes a “surface connection” to navigable waters, while placing other types of water bodies, such as “ephemeral” streams and roadside or farm ditches, outside of CWA jurisdiction.

According to Bloomberg Law, Dave Ross, the top water official at EPA, told reporters that the new rule doesn’t entirely reject the Kennedy opinion, but instead incorporates narrower language from the late Justice Antonin Scalia in the same Rapanos decision.

But William Buzbee, a law professor at Georgetown University, told Bloomberg Environment that EPA’s new definition is “directly contrary to its own past legal views and what the Supreme Court has very clearly said.”

Blan Holman, an attorney with the Southern Environmental Law Center, told Bloomberg Environment that the new definition is “clearly rejecting Kennedy’s ‘significant nexus’ test,” and would result in a majority of the nation’s wetlands falling outside of CWA jurisdiction because they lack a surface connection to navigable waters.

“Every court that’s looked at it said the Kennedy test rules,” Holman told Bloomberg. “To propose a rule that thumbs its nose at the ‘significant nexus’ test is interesting.”

The new WOTUS definition is in response to a February 2017 Executive Order from President Trump (GM March 3, 2017), who indicated quickly after taking office that he intended to revoke and replace the 2015 WOTUS rule. The Trump administration tried to delay the 2015 rule’s compliance deadline while it worked on a new version, but those delays were challenged this summer in court (GM Aug. 24, p. 1). Two recent decisions by U.S. District Courts in South Carolina and Washington have also invalidated the delay.

Because of legal challenges, the 2015 WOTUS rule is currently in effect in only 22 states, the District of Columbia, and the U.S. territories. That patchwork of enforcement is likely to remain the standard for some time, Bloomberg reported.

The new rule is now in a 60-day public comment period, after which the EPA and Army will release the proposal in its final form. Any legal challenges to the rule will be filed only when the final rule is published, Bloomberg reported. As a result, the revised rule is likely to be mired in litigation in the lower courts for years before it ends up at the Supreme Court, if it gets that far.

This lengthy process will be further influenced by the results of the 2020 election. A second term for the Trump administration increases the odds of a Supreme Court review of the rule, but an industry attorney told Bloomberg Law that a Democrat president will have no desire to defend the rule.

The new WOTUS definition is supported by agriculture and industry trade groups, including the National Corn Growers Association (NCGA), The Fertilizer Institute (TFI), and the Agricultural Retailers Association (ARA).

Trump Signs Farm Bill amid Threat of Government Shutdown, Escalating Argument over SNAP

President Donald Trump on Dec. 20 signed the 2018 Farm Bill into law, but not without some 11^th hour drama that included the release of a USDA plan to strengthen work rules for food stamp recipients through the regulatory process.

The five-year, $867 billion farm bill, known as the Agriculture Improvement Act of 2018, was passed by both chambers last week (GM Dec. 14, p. 1) with only limited changes to work rules required under the Supplemental Nutrition Assistance Program (SNAP). The House version of the bill had included tougher work requirements for SNAP recipients, but the compromise bill opted instead to keep provisions that allow governors to sign off on work requirement waivers in areas of high unemployment.

Just hours before the bill’s signing, however, USDA released a plan that would eliminate statewide waivers from work requirements for SNAP recipients unless a state qualifies for extended unemployment benefits, Bloomberg reported. USDA Secretary Sonny Perdue told reporters during a press call that he believes the administration “can make improvements to SNAP through the regulatory process.”

House Agriculture Chairman Mike Conaway (R-Texas) said the USDA action works in tandem with the new farm bill. “I applaud the proposed rule and proudly stand with the Trump administration in demonstrating the importance of state accountability and recipient success,” Conaway said in a statement.

Sen. Debbie Stabenow (D-Mich.), who serves on the Senate Agriculture, Nutrition, and Forestry Committee, said the administration’s action defies the farm bill, however, and will likely face legal challenges.

“Congress writes laws and the administration is required to write rules based on the law, not the other way around,” Stabenow said in a statement. “Congress chose not to change the current SNAP work rules in the Farm Bill, and instead, focused on strengthening work programs that actually help people get jobs.”

The bill’s signing also took place under the threat of a looming government shutdown, which was set to start at the end of Dec. 21 unless Congress and Trump set aside their feud over border wall funding and reach a short-term deal to extend funding for major federal agencies.

Despite these uncertainties, the farm bill signing was applauded by the National Corn Growers Association (NCGA) and a number of trade associations representing the crop insurance industry. Among the bill’s key provisions, commodity support programs and crop insurance provisions are reauthorized mostly in their current form, although with some changes to how benefits are calculated.

“NCGA is very pleased that our farmers will be able to look forward to a new year with the certainty of a new farm bill,” said NCGA President Lynn Chrisp. “Between depressed commodity prices, record low farm incomes, and tariffs and trade uncertainty, today’s signing is very welcome news.”

“It’s been a difficult year for farmers and ranchers from coast to coast, but rural America is ending 2018 on a high note with this farm bill,” said a joint statement from the American Association of Crop Insurers, Crop Insurance and Reinsurance Bureau, Crop Insurance Professionals Association, Independent Insurance Agents and Brokers of America, National Association of Professional Insurance Agents, and National Crop Insurance Services. “The new law keeps crop insurance affordable and widely available for agriculture, and it provides much-needed certainty heading into 2019.”

The insurance associations said farmers spend $3.5-$4 billion annually on approximately 1.1 million crop insurance policies, which provided $106 billion in claims this year on more than 130 different crops covering 311 million acres.