President Trump locked in his crusade against the punch-drunk Environmental Protection Agency (EPA) today, signing an executive order aimed at unraveling the expansive 2015 rule known as the Waters of the United States rule, put in place by former President Barack Obama.
The executive order has no immediate legal effect, but instructs the new EPA administrator Scott Pruitt to begin repealing and rewriting the sweeping rule that is designed to protect American waterways from pollution. It comes on the heels of a proposal to cut funding to the EPA by billions of dollars and to waive thousands of its staff.
This is reportedly the first of two executive orders expected to come out of the White House this week targeting EPA rules. The other is set to take aim at President Obama's landmark climate change rule, the Clean Power Plan.
The 2015 Waters of the United States rule was the result of an extensive effort by the Obama administration to expand the federal government's authority to protect the nation's rivers, lakes, streams and wetlands from pollution. For decades, authorities struggled to protect larger bodies of water like the Chesapeake Bay, Mississippi River and Puget Sound, because they had muddled authority over many of the small water bodies flowing into them. As a result, these tributaries carried fertilizer discharges and other kinds of pollution from agriculture and fossil fuel extraction into the larger bodies.
By stretching out the umbrella of the 1972 Clean Water Act, Obama and former EPA administrator Gina McCarthy were able to secure protection of almost 60 percent of the nation's bodies of water. But it happened without the approval of a Republican-controlled Congress. The rule would require farmers or companies to obtain federal permission before they used certain fertilizers, for example, if their land was near a stream or wetland.
The rule provoked the ire of the fossil fuel industry, pesticide and fertilizer makers, and farmers who contended that it would stifle economic growth. The American Farm Bureau Federation led a lawsuit against the rule in 2015 arguing that it puts an extra burden on farmers to have to get a permit to use certain fertilizers if they're near water. It has been log jammed in the legal process since. A federal court has delayed the rule while judges review the legal challenges against it.
President Trump's executive order today instructs EPA administrator Scott Pruitt, and the Army Corps of Engineers to review the rule and to "rescind or revise" it, as "appropriate and consistent with the law." It also directs newly appointed Attorney General Jeff Sessions to ask the Supreme Court to put the case on hold.
The president's order, however, has no legal authority over the rule itself, and is simply a nod to Pruitt to begin the circuitous legal process of dismantling it, which could take more than one term to see through. To get rid of it, the administrator would have to go through the same rulemaking process that put it together, meaning notice and comment periods and probable legal battles.
Richard L. Revesz, a professor of environmental law at New York University told the New York Times that the order is akin to "a phone call or a tweet. It just signals that the president wants it to happen."
For his part, however, Pruitt may enjoy the legal labyrinth he must navigate to successfully undo the rule. The ex-attorney general of Oklahoma has been a longtime adversary of the EPA and has taken part in over 14 lawsuits against the agency on behalf of the fossil fuel industry.