EPA's Safer Communities by Chemical Accident Prevention Rule will almost certainly be challenged and EPA is the underdog in the legal fight to come

EPA picked another Clean Water Act fight with the United States Supreme Court last week and I don't understand why EPA thinks it is a fight it can win.  As many of you know, the jurisdictional reach of the Clean Water Act is now the shortest it has been in over forty years as a result of the Supreme Court's opinion in Sackett v. EPA.  

In Sackett, a majority of the members of our nation's highest court held, over the strenuous objection of EPA and the Army Corps of Engineers, that Waters of the United States are only relatively permanent streams, oceans, rivers, and lakes and wetlands connected to traditional interstate navigable waters and wetlands with a continuous surface connection to such Waters of the United States.

Like I said, the Supreme Court's definition of Waters of the United States is even narrower than in the Trump Administration's 2020 Navigable Waters Protection Rule.

So perhaps it isn't surprising, even if not sustainable, that EPA's post-Sackett “conforming” revised definition of “Waters of the United States” is broader than that supplied by the Supreme Court. That definition has been challenged in at least three Federal District Courts and it is now the law in less than half of our not very United States.

Which brings us to the Clean Water Act rule EPA published last week.  On the one hand, EPA was required to publish something like it by a judicially approved consent decree.   And preventing catastrophic spills is something we should all be able to get behind.  And, in the old days, when courts deferred to agency interpretations of statutes they are charged with administering, this rule likely would have passed judicial muster.

But I think EPA is going to have problems with its interpretations of “reasonably be expected to cause substantial harm to the environment” and “discharging into or on the navigable waters, adjoining shorelines, or the exclusive economic zone” for the same reasons its definition of Waters of the United States was rejected by the Supreme Court.

EPA has interpreted “reasonably be expected to cause substantial harm to the environment” in the statute to include the “ability to cause [any] injury to fish, wildlife, or sensitive environments”. I expect that challengers will say that there is a big difference between “reasonably be expected to cause substantial harm to the environment” and “ability to cause [any] injury” and I expect that a court in the venue those challengers choose will agree.

And EPA has interpreted “discharging into or on the navigable waters [or] shorelines” in the statute to include any facility within a half mile of a navigable water or a conveyance through which liquids may ultimately be conveyed to a navigable water.  Prior commenters, and EPA, see this as a Sackett issue.  As I told Bobby Magill of Bloomberg Law last week, I'm surprised EPA didn't see it as a Maui (Hawaii Wildlife Fund v. County of Maui) issue.  

The Supreme Court’s opinion in Maui (which is still good law at the moment) says that any discharge of a pollutant which is the functional equivalent of a discharge to a Water of the United States is appropriately regulated under the Clean Water Act.  I don’t understand why EPA doesn’t even mention Maui in explaining its new rule instead of poking the Sackett  “Waters of the United States” bear again.

It would follow from that reasonably recent opinion by the nation’s highest court (albeit with much different members) that, under section 311(j)(v) of the Clean Water Act, EPA can regulate any facility from which a release of hazardous substances might ultimately be the functional equivalent of a discharge to a Water of the United States as defined in Sackett if that potential release could be reasonably expected to cause substantial harm to the environment. 

But I don’t think EPA has adequately explained why a location one-half mile from a navigable water or a conveyance is functionally equivalent in this context and, for that reason, and the difference between “substantial harm” and any "injury”, I think EPA could be in for trouble again with this rule.