back arrowView show

032 | How the Trump Administration Is Undermining the Clean Water Act, Part One

Episode description

This is the fifth in a five-part series. You can find the first installment here.

US Environmental Protection Agency boss Scott Pruitt is gone – not because of his environmental malfeasance, but because his $43,000 phone booth, his $100,000 trip to Disneyland, and his attempts to get his wife a lucrative job were too tacky even for an administration built on bling.

His replacement, Andrew Wheeler, is less embarrassing but more dangerous. A coal lobbyist until last year, Wheeler is also a long-time adviser to climate-science denier James Inhofe and a sure bet to continue Pruitt’s policies – albeit with more stealth and fewer attention-grabbing abuses of power.

Pruitt’s departure comes just one week after Justice Anthony Kennedy announced his own retirement from the US Supreme Court, and those two departures have overshadowed the publication of a document that Pruitt and Army Public Works boss Ricky James dropped on us last Friday – a document that mentions Kennedy 64 times and illustrates as well as anything the underhanded way Pruitt subverts environmental protections: not through argumentation, but through sabotage in the name of regulatory certainty (and just in time for summer break).

It’s a document that will show up on the Federal Register any day now, and that you and any member of the public will then have 30 days to comment on, but which you’ll only understand if you know a bit of history, and that’s by design. It’s part of an effort to torpedo a Supreme Court opinion that Kennedy penned in 2006 – an opinion that builds on decades of precedent and practice, and that provides the foundation for the 2015 Waters of the United States (WOTUS) Rule (also known as the “Clean Water Rule”), which sets the ground rules for determining which of the waters of the United States are protected by the Clean Water Act (CWA).

If Wheeler and James can rescind that rule, they’ll manage to undermine the popular Clean Water Act without the voting public knowing until it’s too late, and last week’s document is part of their effort to do just that.

Specifically, it’s a supplemental notice to the Trump Administration’s year-old proposal to repeal the WOTUS rule and instead “recodify” the mess that predated it in accordance with an opinion written by the late Justice Antonin Scalia – an opinion mostly ignored by courts and practitioners, for reasons we covered in earlier installments of this series.

Scalia, as we saw in part three, believed the CWA should only protect “relatively permanent, standing or flowing bodies of water” – basically, lakes rivers, and streams, but not the wetlands or creeks that feed them, and not waterbodies that only flow intermittently.

The repeal would leave 80 percent of US waterways unprotected by federal authorities, and it’s one part of a multi-pronged attack on WOTUS that includes a two-year delay on its implementation and a more insidious order to ignore the local scientists and specialists who review dredging permits and instead “involve the Administrator’s Office early on in the process of developing geographic determinations” – a move that Kyla Bennett, director of science policy for Public Employees for Environmental Responsibility (PEER) described as “a crude Clean Water Act coup d’état.”

“This latest move by Pruitt is his Plan B as it is becoming increasingly clear that his Clean Water rewrite plan is illegal and will be tossed out in court,” she said.

In this, the fifth, final, and long-overdue installment in a five-part series on the Clean Water Rule, we try to offer a clear and simple explanation of the state of WOTUS in the current administration. You can see the first installment here.

More on the Bionic Planet Podcast

The story continues below, but I’ll also be editing audio from the interviews I conducted with Shrader and others for this series into episode 32 of the Bionic Planet podcast, which which I hope to have ready over the weekend. You can access Bionic Planet via iTunesTuneInStitcher, and pretty much anywhere you access podcasts, as well as on this device here:

Timeline

The story continues below, but here is a timeline to help you keep key dates in order:

  • June 19, 2006: The Supreme Court’s Rapanos v United States split decision introduces massive uncertainty over what are and are not protected waters, sparking hundreds of court cases and demands for clarity. Over time, Justice Kennedy’s “significant nexus” guidance becomes the rule of the land.
  • August 27, 2015: As the Obama Administration prepares to implement the WOTUS Rule, a district court in North Dakota issues a preliminary injunction against the rule until arguments can be heard, essentially freezing the rule in 13 states.
  • October 9, 2015: The Sixth Circuit Court issues a nationwide stay, which the Obama Administration begins to fight before the 2016 elections sweep Donald Trump into office.
  • February 28, 2017: Donald Trump signs an executive order instructing the EPA to scrap the WOTUS rule and “consider interpreting the term ‘navigable waters’…in a manner consistent with the opinion of Justice Antonin Scalia.”
  • July 27, 2017: Pruitt and acting Army Civil Works boss Douglas Lamont publish their proposal to rescind the 2015 WOTUS Rule – a move that cannot be challenged in court until the rule becomes official.
  • January 22, 2018: The Supreme Court rules that challenges to the WOTUS rule must be filed in district courts, forcing the Sixth Circuit Court to vacate its nationwide stay but leaving the North Dakota injunction intact.
  • February 6, 2018: With the Sixth Circuit Court’s stay vacated, Pruitt and Lamont implement an “applicability date” two years in the future – namely, in February, 2020 – sparking an immediate court challenge.
  • March 30, 2018: EPA boss Scott Pruitt directs the agency to ignore local experts and defer instead to his own office when issuing permits.
  • June 29, 2018: Pruitt and James issue a supplemental notice to the earlier proposal. The new notice summarizes existing court challenges and argues that their existence introduces more uncertainty than existed before the rule was created.
  • July 5, 2018: Scott Pruitt resigns, and former coal lobbyist Andrew Wheeler is named his replacement.

New Notice, Old Arguments

Last week’s supplemental notice will soon be listed in the Federal Register, after which the public has 30 days to comment on it. Some organizations, like the American Farm Bureau, a longstanding WOTUS opponent, have welcomed the notice.

“The issuance of this additional notice shows that EPA listened to public comments that showed confusion over what was being proposed and why,” they said in a statement. “This supplemental notice will provide a more meaningful opportunity for public comment by clarifying that EPA’s proposal is to permanently repeal the 2015 WOTUS rule because that rule was illegal in multiple respects.”

Beyond clarifying the position, however, the notice does little to bolster the Administration’s claim that the existing rule should be repealed before the agency can “recodify” the mess that the rule was created to fix. After finding that the previous regime was riddled with uncertainty, the agency has a duty to explain why it must repeal the whole rule rather than leaving the rule in place while working to correct whatever problems the agency claims to have found in the rule.

“It’s ironic that they claim they’re doing this to provide certainty, considering the fact that before 2015 there was a world of very little certainty,” says Bethany Davis-Noll, Litigation Director at New York University’s Institute for Policy Integrity. “Getting rid of the 2015 rule doesn’t reduce regulatory uncertainty; it creates regulatory uncertainty.”

In addition, the administration has yet to explain how returning to the confusing regime in place before the 2015 rule complies with the Clean Water Act or how the agency is justified in imposing forgone wetlands benefits on the public.

“Without that explanation, this could be a pretty good lawsuit for anybody who wants to challenge the agency,” says Davis-Noll

That is, in fact, a pillar of the suit currently underway to block the delayed implementation of the rule.

The Lack of Analysis or Reason

This series began back in February, when 11 states sued to block the delay in implementing the WOTUS rule, based in part on their contention that the new applicability date was pulled out of thin air while going through the motions of scientific review and public consultation as required by the Administrative Procedures Act.

A key argument is that the Trump Administration ignored the existing cost/benefit analysis and failed to conduct one of its own. Columbia University Assistant Professor Jeffrey Shrader says the Trump Administration not only overstates the costs of implementing the rule, but ignores the benefits of scenic beauty, resilient agricultural systems, and income from mitigation banking.

“They left out any benefit from mitigation or protection of wetlands,” says Shrader, who co-wrote an analysis called “Muddying the Waters: How the Trump administration is obscuring the value of wetlands protection from the Clean Water Rule”.

Specifically, he points out, the administration simply ignored all wetland benefit studies published between 1986 and 2000 on the premise that their age makes them untrustworthy, but the administration also took its own cost analysis from the same period – despite the fact that more recent studies focused on coastal wetlands show that valuation benefits have increased since then. At the same time, the rise of mitigation banking has both reduced the cost of compliance and created income for people who restore degraded landscapes.

The End of the Restoration Economy?

Proponents of the repeal argue that states will pick up the slack, but current laws evolved because upstream cities and states had little inclination to do that.

“About half of the states have laws on the books that say they cannot implement stricter protection for wetlands than the federal government, and those are the states where the largest at-risk wetlands are located,” says David Groves, a former policy advisor to the Obama Administration who now works as Director of Business Development at The Earth Partners, an environmental consultancy.

“The vast majority of economic activity in the mitigation banking industry is in the southeast, which is made up of states with no state-level protections,” he adds. “Significantly reducing the scope of the Clean Water Act would present an existential threat to the mitigation banking industry and would destroy a huge amount of value.”

The result, he says, would be more taxpayer spending overall, but the costs would flow to downstream states.

 

episodes iconMore Episodes

045 | Nature, Paid on Delivery; with Guest Tim Male

April 1st, 2019

55:01

Environmental scientist Tim Male has worked the conservation puzzle from both the NGO and governmental sector -- first with NGOs like Environmental Defense Fund, then as an elected councilman, and finally as an adviser …

044 | Green New Deal Architect Rhiana Gunn-Wright

March 18th, 2019

34:52

We've been fairly US-centric lately, but only because so much is finally happening there. In today's episode, we speak with Rhiana Gunn-Wright of New Consensus. That's the Think Tank that's helping freshman …

043 | Bees Trees and Burning Bluffs

March 6th, 2019

29:23

We're losing pollinators at an alarming rate, which scientists attribute at least in part to the loss of native plants, which evolved alongside …

042: (Adapted Encore) Donald Trump's Dirty Water Rule

March 1st, 2019

56:13

Wetlands cover 274 million acres of the United States, and they ultimately provide more than half the country's drinking water, which is one reason …

041: ENCORE PRESENTATION: Why the Sustainable Development Goals Really Are a Very Big Bid Deal

February 15th, 2019

34:33

We hear a lot about the Sustainable Development Goals, or "SDGs" these days, with major pension funds like Calvert aligning their portfolios with …

40 | Former Climate Boss Yvo de Boer

January 23rd, 2019

1:22:51

Yvo de Boer served as Executive Secretary of the United Nations Framework Convention on Climate Change (UNFCCC) from August, 2006 to July, 2010; and …

39 | How World's Farmers are Engaging the Global Climate Apparatus

December 24th, 2018

51:31

Agriculture emits roughly 20 percent of all greenhouse gasses, but sustainable management of forests, farms, and fields can turn the world's farms …

38 | Natural Climate Solutions at Katowice Climate Talks

December 8th, 2018

51:35

The first week of year-end climate talks have wrapped up in Katowice, Poland, where natural climate solutions are finally getting the attention they …

037 Oil Palm, The Prodigal Plant, Is Coming Home To Africa. What Does That Mean For Forests?

December 2nd, 2018

41:49

Samuel Avaala shakes his head as he dips his fork into a bowl of red-red, a traditional Ghanaian stew that gets its color – and name – in part from …

036| Can These Indigenous People Sustainably Log And Still Save Their Forest?

November 28th, 2018

29:10

Ilson López is the President of Belgium.

Not the European country, but the indigenous village in the district of Tahuamanu, in the Peruvian state of Madre de Dios, at the western edge of the Amazon forest. He’s part of …

035 | What The Civil Rights Movement Can Teach Us About Fixing The Climate

October 31st, 2018

1:02:13

 

 

In this episode, we speak with the Reverend Dr. Gerald Durley, who says climate change and civil rights are inexorably intertwined, and not just because the destruction of our living ecosystems is robbing us of our …

034 | Climate Shock Revisited: the Economics of Carbon Pricing

October 10th, 2018

1:16:28

When countries around the world ratified the Paris Climate Agreement in 2016, they pledged to prevent average global temperatures from rising to a level more than 2 degrees Celsius, or 3.7 degrees Fahrenheit, above …

032 | Indigenous Leader Hindou Ibrahim on Indigenous People and Global Commodity Companies

September 11th, 2018

1:00:53

Hindou Ibrahim grew up in rural Chad, a member of the nomadic Mbororo people. Today, she co-chairs the International Indigenous Peoples Forum on …

031 How Nature Can Get Us 37 Percent Of The Way To The Paris Climate Target

March 1st, 2018

40:08

Today I speak with Bronson Griscom, Director of Forest Carbon Science for the Nature Conservancy.   Last year, he headed up a team of three dozen researchers from almost two dozen institutions tasked with identifying …

030 A Green Deal for the Netherlands

January 30th, 2018

29:53

Jos Cozijnsen shakes his tangled black mane and adjusts his leathery blue suit – fashioned, it turns out, from overalls discarded by German railroad workers and available through his sustainable clothing company, 

029 | A Tale of Two Companies

January 23rd, 2018

38:19

Hundreds of consumer-facing companies have pledged to purge deforestation from their supply chains -- often by only buying products that are certified as being sustainably grown. But what happens when a certified …

028: 2017 Year In Review

December 31st, 2017

1:31:45

I've produced 19 episodes of Bionic Planet since the election of Donald Trump, mostly focused on the work of people trying to fix the climate mess -- and in today's episode I look back on some of the ones that seemed to …

027 | Understanding the World Bank's BioCarbon Fund and Forest Carbon Partnership Facility

December 1st, 2017

1:17:30

More and more countries across the developing world are launching large-scale, climate-smart initiatives to transform the way local communities derive their livelihoods from forests and broader land use. A key component …

026| Breakthrough in Bonn: Fixing World's Farms

November 15th, 2017

21:31

Under the Paris Agreement, countries were asked to present their own climate action plans, and 90 percent of these action plans -- technically called NDCs, for "nationally-determined contributions" -- incorporated …

025: Trademarks, Gateways, And Global Climate Talks

November 15th, 2017

44:50

 Towards the end of summer, climate negotiators learned of three trademark applications that were filed in May of this year. One was for the logo “REDDPLUSX”, which is described as a carbon credit brokerage. Another was …

024 The Grand Experiment To Save Appalachia’s Forests

October 28th, 2017

58:11

The DOGWOOD ALLIANCE is an environmental NGO based in the Southeastern United States -- a region that produces 12 percent of the world's wood, pulp, …

023 Raw Audio From New York Climate Week

October 28th, 2017

1:49:47

Today's episode is different from most: For the most part, it's just raw audio from the Climate Week that we built episode 22 on -- namely, the event where Tropical Forest Alliance 2020 unveiled its 10 keys to slashing …

022: Ten Keys To Deforestation-Free Commodities By 2020

October 9th, 2017

50:30

Teaser

NARRATOR

Donuts, deodorant, buns and burgers. They're killing us -- and not just because of what they do to our bodies.

No, it's because of what the soy, beef, and palm-oil that they're made of -- and they paper …

021 AlphaSource: Investing in Forest Carbon

August 17th, 2017

48:25

If you know anything about IKEA Group, the giant Scandinavian furniture company, you know that most of their products are made of wood, and you may even know that they're one of the "good" companies that tries to buy …

020 Brazil and Indonesia: Connecting the Climate Dots

August 10th, 2017

1:12:43

Have you ever heard of a company called Marfrig Global Foods? How about JBS?

Hint: JBS is named after "Jose Batista Sobrinho", a Brazilian rancher who's something like the Oscar Meyer of Brazil, only much bigger.Yes, …

019: Can Europe Tap The Private Sector To Protect Its Environment?

July 19th, 2017

54:35

Our show today starts with two French communes -- namely, Contrexéville and Vittel -- because these two have some of the cleanest, purest water in all of Europe, but they also almost didn't.

Up until 1992, the farms …

018 | Why Zoologist Andrew Mitchell Left the Forest to Save the Forest

July 13th, 2017

40:20

Today we speak with Andrew Mitchell, founder and director of the Global Canopy Programme (GCP). A zoologist by training, Andrew realized that to save …

How Marks & Spencer Is Helping To Build A Global ‘Sustainability Tribe’

June 19th, 2017

38:48

When UK retailer Marks & Spencer launched its ambitious sustainability strategy in early 2007, it dubbed the strategy “Plan A” to remind us that we have just one planet, so there is no Plan B.

Plan A amounted to …

Bertrand Piccard Wants You (And Your Climate Solutions)

June 16th, 2017

26:38

It's been almost a year since a Swiss engineer/businessman named André Borschberg and a Swiss psychiatrist/balloonist named Bertrand Piccard …

015: How Garlic Cloves and Orange Peels Cut Cow Burps and Slow Climate Change

June 8th, 2017

39:07

More than 1.5 billion cows are spread across the planet, each with four stomachs.  That's six billion stomachs emitting methane -- a powerful …

014: One Billion Tons of Voluntary Carbon

May 30th, 2017

37:07

With the United Kingdom on the brink of leaving the European Union Emissions Trading System (EU-ETS), the United States locked in the inertia of a …

013 How to Track Climate Laws of the World

May 11th, 2017

15:55

One hundred and forty-four countries have ratified the Paris Climate Agreement, and 143 of them say they'll stay-in-it – even if Donald Trump pulls …

012 Will Trump "Get Out of the Way" on Climate?

May 8th, 2017

18:24

Climate negotiators are meeting in Bonn, Germany, the next two weeks to move the Paris Climate Agreement forward – even as Republicans in the United States seem intent on moving it backward. Most countries say they …

011 New Age of Radical Transparency

December 2nd, 2016

35:20

Today we examine an amazing new tool called "Trase", which launched at year-end climate talks in Marrakesh, Morocco.

It shows you something we've …

010 Climate Change in the Trumpocalypse / Part 2: The Role of US States, Regions, and Business

November 27th, 2016

38:09

US president-elect ​Donald Trump claims to have an open mind on climate science, but he put an unabashed climate-science denier in charge of his environmental transition team, and he says he'll slash NASA's …

009 Climate Change in the Trumpocalypse / Part 1: Initial Reactions

November 10th, 2016

23:16

Initial reactions from Marrakesn to Trump Victory in US

I came to year-end climate talks here in Marrakesh with a clear plan to cover the most complicated elements of these talks and break them down for a general …

008 Can New Aviation Agreement Save Forests?

October 7th, 2016

42:20

On Thursday, 65 countries representing 83% of international aviation agreed to cap their greenhouse-gas emissions from international flights at 2020 levels from 2021 onward – in part by forcing airlines to offset …

007 Of Milk and Money / Part One: the CEO and the Subsistence Farmer

October 3rd, 2016

23:27

Part One of a multi-part series examining the ways small Kenyan farmers are teaming up with multinational agribusinesses to confront climate change …

006 Climate, Conflict, and Commodities: The Calculus of Peace on a Changing Planet

July 2nd, 2016

37:24

The United Nations Environment Program says that resources are a factor in 40% of all organized armed conflicts, but only 15% of peace agreements …

005 Why We Should All Care About the UN's Sustainable Development Goals

June 14th, 2016

32:21

 

In 2015, more than 150 countries endorsed the United Nations Sustainable Development Goals (SDGs), which are 17 goals to end poverty, improve health, and tackle climate change. They're broken into 169 specific …

004 How Companies Use Carbon Markets To Reduce Emissions

May 27th, 2016

23:56

Companion article at ecosystemmarketplace.com/articles/voluntary2016/

Hello, and greetings from Cologne, Germany, where we’re wrapping up two intense …

003 Putting a Price on Carbon / Part Two: What we Don't Know Could Kill Us

May 10th, 2016

40:56

The US government estimates that every ton of carbon dioxide emitted into the atmosphere generates at least $40 in damages by contributing to climate change, but the Swedish government says the figure is closer to 100 …

002 The 40,000-Year-Old-Question / Part One

May 4th, 2016

21:41

Tanzania's Hadza people have lived in tune with nature for 40,000 years, but now they face their greatest challenge. Here's how they're both adapting to and combating climate change -- and how we can all learn from them.

001 Putting a Price on Carbon / Part One: The Argument in Favor

April 22nd, 2016

49:12

The Argument For a Price on Carbon: Part One.

Featuring  Harvard Economist and "Climate Shock" co-author Gernot Wagner, with Canadian Prime Minister Justin Trudeau, Chilean President  Michelle Bachelet, and Ethiopian …

Loading ...

Download the RadioPublic app for
 FREE and never miss an episode.

Get it on Google PlayDownload on the App Store