Colorado is no longer protected from the Trump administration’s effort to constrict the reach of the nation’s principal water pollution law after the 10th U.S. Circuit Court of Appeals dissolved a preliminary injunction against a controversial EPA regulation. The March 2 decision leaves the the state’s waterways susceptible to more risk of contamination than at any time in nearly 50 years.
U.S. District Judge William Martinez blocked the Navigable Waters Protection Rule within Colorado last June. He found the state had demonstrated not only a likelihood that the rule violates federal statutory law but that the attorney general’s office had proven a likelihood that Colorado would suffer “irreparable harm” if the injunction were not issued.
“It has potential to do a lot of harm to waters around the country as long as it remains in effect,” said Daniel Estrin, general counsel and advocacy director at Waterkeeper Alliance in New York. He said the risk involves the possibility that polluters will fill wetlands and discharge toxic and other dangerous substances to lakes, rivers, and streams at will. “If you can get a jurisdictional determination from the Army Corps of Engineers that says this isn’t a federal stream, and therefore falls outside of federal jurisdiction, then there’s really nothing that stops a developer in most states from coming in and filling those areas in and essentially destroying them,” he said. The wetlands that are filled and the streams into which pollutants are routed, Estrin said, impact larger tributaries, “where we get our drinking water and our irrigation water.”
Mark Squillace, a professor at the University of Colorado Law School, is less pessimistic. “Because I think the Biden administration is going to move relatively quickly to overturn the rule, to come up with some other rule, I don’t know that, long-term, it’s going to have a huge impact.”
In Colorado, regulators in Gov. Jared Polis’ administration will likely move to assure that waters formerly protected by the Clean Water Act, but which now are unprotected for the first time since at least 2008, are subject to pollution controls imposed by the Department of Public Health and Environment. A January 2021 DPHE white paper disclosed that agency staff has worked with stakeholders to develop a proposal for a strengthened state water pollution law.
It may not be possible for all states to provide increased regulatory protections for waterways. Squillace said some states forbid their environmental regulatory agencies from going beyond the reach of federal rules. In addition, some regions will be particularly susceptible to pollution damage to waterways because the Trump rule cuts them out of EPA’s regulatory reach for the first time since the Clean Water Act took effect in 1972. “The Southwest is likely the most vulnerable part of the country because ephemeral streams are defined [as] outside the scope of federal jurisdiction,” he said. “And such a large percentage of the miles of streams and waterways in the Southwest are ephemeral or are fed ephemerally.”
NWPR was finalized by EPA in April 2020. Intended to replace a regulation put in place by President Barack Obama’s administration in 2015, NWPR defines the statutory term “waters of the United States” in a manner that excludes nearly every ephemeral stream and many wetlands. “The definition has been disputed, basically going back decades,” Estrin said.
EPA chose to rely on a restrictive interpretation of the phrase advocated by the late Justice Antonin Scalia in a 2006 plurality opinion of the Supreme Court. Scalia asserted that navigability is the touchstone of federal regulatory power over water pollution, although that understanding is not indisputable based on the Clean Water Act’s text. The Obama-era EPA had defined “waters of the United States” more consistently with an explanation of the term advanced by Justice Anthony Kennedy in a concurring opinion in that case. The Kennedy view, which interpreted the shibboleth to include some waters that are not actually navigable, represented the judgment of the court in the dispute. “Kennedy’s basically going along with the outcome that Scalia wanted, but said that as long as there’s a significant nexus between navigable waters and the waters you’re trying to regulate, then there’s jurisdiction,” Squillace said.
The Trump administration move was met with a blizzard of litigation, with at least four cases challenging it filed in federal courts around the country. The Colorado challenge is the only one that succeeded in securing an injunction against it from a federal trial court. Martinez determined that the Trump-era EPA created a risk that wetlands in the state would be destroyed because the pandemic had kept the General Assembly from convening to consider any amendments to the state’s water pollution law needed to prevent that outcome. “At least some of that enforcement burden (i.e., filling in Disputed Waters) will now fall in Colorado’s lap,” Martinez wrote. “That share of the enforcement burden is not at all minimal or speculative. Colorado asserts, and [the federal government] do[es] not dispute, that about half of state waters protected by the Current Rule will be unprotected by the New Rule.”
Judge Bobby Baldock rejected Martinez’ conclusion that Colorado would be irreversibly damaged if the Trump rule took effect. “To merit preliminary injunctive relief, a movant must present a significant risk [that] it will experience harm that cannot be compensated after the fact by money damages,” the New Mexico-based jurist wrote, noting that “speculative” or “theoretical” damage will not be enough to secure an injunction.
In an opinion joined by judges Carolyn McHugh and Allison Eid, Baldock then concluded that Attorney General Phil Weiser’s argument that NWPR would force Colorado to undertake enforcement actions that it would not otherwise be compelled to do lacked foundation. Baldock found fault with the evidence Weiser submitted to support this claim — an affidavit of a state employee. “The declaration only provides that this obligation could begin as soon as the NWPR goes into effect and that Colorado will need to assume some of this [enforcement] burden in the future,” the appointee of President Ronald Reagan found. “These vague assertions are insufficient to support a finding, which the district court did not explicitly make, that Colorado would likely suffer an increased enforcement burden before a decision on the merits.” He also concluded that the state employee’s affidavit did not “tie any alleged reduction in federal enforcement — and thus any potential increase in Colorado’s enforcement burden — to the jurisdictional changes under the NWPR.”
The 10th Circuit’s decision does not end Colorado’s litigation against the NWPR. Weiser can continue to argue a violation of the Administrative Procedure Act, Clean Water Act, and National Environmental Policy Act. Weiser told Courthouse News that he is “disappointed with the court’s ruling.” The attorney general declined to comment about whether his office will ask the en banc 10th Circuit to revisit the injunction question or seek review of Baldock’s opinion by the Supreme Court. Instead, Weiser said only that his office will examine the 10th Circuit’s ruling “in the coming days and determine how best to protect Colorado’s water” and that he hopes President Joe Biden’s administration “will take a more sensible approach to this critical issue.”
Estrin said he does not think that a court will remand NWPR to EPA even if the agency asks it to do that. “They will likely need to either repeal that rule or have a court vacate it.” On the other hand, he predicted newly-confirmed EPA administrator Michael Regan is likely to make replacement of NWPR a high priority. “They understand that it is the most dramatic rollback of authority in the history of the Clean Water Act,” Estrin said.
Even if Regan does move quickly to eliminate NWPR and restore a broader jurisdictional reach of EPA under the Clean Water Act, the nation may be able to avoid the policy ping-pong ball of restrictive definitions of “waters of the United States,” only if Congress addresses the problem.
“I object to the whole notion that you should be looking at [the waters of the United States phrase] in terms of navigable waters,” Squillace said. “The legislative history could not be more clear on this point.” Squillace said that, in the case of the Clean Water Act, judges can look to the “gold standard” of a record of Congress’ intention when it enacted the law. “It was what we call a conference report, so it was the final report from Congress after both houses have agreed to the final text,” he said. “We consider that to be the best of the best of legislative history.” In that report, according to Squillace, Congress “said they intended the broadest possible constitutional interpretation of that phrase.”
Estrin remarked that the urgency of a legislative response may be more pronounced given the increasingly hostile attitude of some federal judges to the Clean Water Act. “In earlier decisions going back to the ’70s and ’80s, courts seemed much more attuned to what Congress intended, that it was meant to be this all-encompassing federal [law] that regulated every discharge,” he said. “We’ve seen this much more nit-picking review of a lot of the provisions. It almost seems that they’re looking for ways to find that the act doesn’t apply rather than to accomplish what Congress clearly intended.”
This article appears in the March 15 issue of Law Week Colorado. To read this and other articles from that issue, order a copy online. Subscribers can request a digital PDF of the issue.