Professor Heidi Gorovitz Robertson was one of six speakers at the 20th Annual Great Lakes Water Conference “Water in the Courts” on Friday, November 6, 2020. The conference is sponsored by the Legal Institute of the Great Lakes at the University of Toledo Law School.
Robertson’s presentation — “Waters of the United States 2020 and its Legal Challenges” — addressed US EPA and the US Army Corps of Engineers’ latest version of the definition of “waters of the United States” under the federal Clean Water Act. The definition has enormous consequences with respect to federal regulatory jurisdiction over discharges of pollution into U.S. surface waters and has been controversial for decades. The “Navigable Waters Protection Rule” (NWPR) became effective in most of the country on June 22, 2020 and is the culminating step in the Trump Administration’s multi-year project to repeal and replace Obama Administration regulations defining “waters of the United States” and, by extension, limiting the scope of waters subject to federal jurisdiction. In particular, the NWPR implements a narrow definition of these jurisdictional areas, as indicated in President Trump’s February 28, 2017 Executive Order directing the EPA Administrator to consider interpreting “navigable waters “consistent with Scalia’s opinion in [the U.S. Supreme Court’s 2006 decision] Rapanos v. United States.”
Legal challengers to the new rule insist that the agencies’ creating a rule consistent with Scalia’s opinion was inappropriate because Scalia’s opinion was a plurality, not a majority, and relied on a concurrence by Justice Kennedy to reach a majority. Both the Executive Order and the resulting definition of “waters of the United States” ignore the Kennedy concurrence, which had been reflected in the 2015 (Obama Administration) iteration of the rule.
Robertson is the Steven W. Percy Distinguished Professor of Law at C|M|LAW and Professor of Environmental Studies at the Levin College of Urban Affairs.