In defending its eighth attempt to determine the reach of the Clean Water Act, EPA offers an imaginative interpretation of "status quo"

EPA has now opposed the motions of the State of Kentucky and several industry groups to enjoin its eighth attempt to determine the jurisdictional reach of the Clean Water Act. Much of the content of that opposition is not surprising, including a Chevron call for the Judiciary to defer to EPA's interpretation of the Act it is charged with enforcing and an uncontroversial demonstration that its most recent rule furthers the objective of the Act, which is to restore the biological, physical and chemical integrity of Waters of the United States.

While none of that is surprising, if courts were inclined to defer to EPA's interpretation of the Clean Water Act, or if it was dispositive that any EPA interpretation was consistent with the broad objective of the Act, then there are three decades of litigation, including several interactions with the nation's highest court, that wouldn't have happened.  

Instead this is just the most recent chapter in the longest running controversy in environmental law which is why I was surprised to read that EPA thinks there is a "status quo" and that status quo is EPA's sixth attempt to determine the reach of the Clean Water Act, during the Obama Administration, and not its seventh attempt, during the Trump Administration, because that seventh attempt "is not presently in effect anywhere due to judgments entered by other courts."  

That interpretation of status quo is imaginative for three reasons that I can think of off the top of my head.

First, as a result of "judgments entered by other courts", the Obama Administration EPA attempt was only the law in about half of the states of our Union when it was rescinded by the Trump Administration EPA. It seems a bit stretchy to say that a regulation that was in effect in only half of the states, pending further judicial review, is the "status quo", especially when it was still the subject of live litigation when it was rescinded.

Second, as EPA admits in its opposition, one thing that both its sixth attempt and its current eighth attempt have in common is a "significant nexus" test conceived by then Justice Kennedy in Rapanos, one of those Clean Water Act cases in which the United States Supreme Court did not defer to the Executive Branch. The "significant nexus" test, which has never been endorsed by a majority of the Supreme Court, is at the heart of the Sackett case which the United States Supreme Court is going to decide any day now. Since the Supreme Court is currently reviewing the viability of that "significant nexus" test, which is currently the "status quo" in the Ninth Circuit but not in Kentucky, it also seems a bit stretchy to say that the "significant nexus" test is a given.

Third, it isn't quite telling the whole story to say that the Trump Administration EPA's attempt is not effective as a result of judgments entered by other courts. It isn't effective because it was voluntarily remanded and vacated by certain District Courts but the vacating part of that was recently reversed by three Judges of the Ninth Circuit who held that a court can't vacate a regulation without ruling on the merits of the challenge to that regulation.   That didn't happen before the Biden Administration rescinded the Trump Administration EPA's rule.

The bottom line is that, whether or not EPA ultimately succeeds in defending this most recent attempt to determine the reach of the Clean Water Act, it is going to be a bit before we have a durable "status quo" which is what EPA promised when it began working on this most recent attempt.