Friday, a Federal District Court Judge in California joined most other Federal District Court Judges in concluding that EPA's Clean Water Act regulations should not be vacated while EPA considers how it might revise them.
As faithful readers know, one Federal District Court Judge in Arizona reached the opposite conclusion two weeks ago.
The last time Federal District Court Judges disagreed about the validity of Clean Water Act regulations, way back during the Obama Administration, EPA chose not to choose among conflicting District Court opinions. The result was that the Obama Administration EPA Clean Water Act regulations ended up being the law in half of the States of the Union while the prior regulations were in effect in the other half of the States.
This time EPA immediately chose to side with the District Court Judge in Arizona so we may never know what the Ninth Circuit Court of Appeals or any other Appellate Court thinks about that Judge's lack of deference to EPA's rule making.
Instead we now have no Clean Water regulation or guidance EPA is willing to stand behind other than a policy memorandum that is decades old, and which doesn't have the force of law, and the Supreme Court's obtuse Maui decision.
EPA promises to fix this at some point with a "durable" regulation that won't suffer the fate of its prior two attempts. What do you think the chances are of that?
In the meantime, technically speaking, the Trump Administration EPA Clean Water Act regulations continue to be the law everyplace but Arizona.
And the Federal Courts, and not Congress or EPA, remain the primary interpreters of the Clean Water Act despite what Congress intended.
"While it is within the defendants' discretion to modify their policies and regulatory approaches, and it may ultimately resolve some or all of plaintiffs' objections to the current rule, there has been no evaluation of the merits — or concession by defendants — that would support a finding that the rule should be vacated," Judge Seeborg concluded.
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