COMMENTARY: The Liberal Case for EPA’s New WOTUS Law

By Mike Keegan

After withstanding numerous preemptive judicial challenges, the Trump administration’s version of the Waters of the United States (WOTUS) went into effect on June 22. The Trump rule circumscribed the federal regulatory power over U.S. waters compared to the 2015 Obama administration’s rule which circumscribed the previous rule after the Supreme Court ruled it was a federal overreach in 1989.

Critics of the Trump rule argue it is not supported by science, relying on EPA’s Science Advisory Board (SAB) that concluded the Trump rule “decreases protection for our Nation’s waters and does not provide a scientific basis in support of its consistency with the objective of restoring and maintaining ‘the chemical, physical and biological integrity’ of these waters.”

There are two flaws in this argument. One, “science” as they use the term means the interconnectedness of all waters in the Anthropocene would lead to the logical conclusion that the same science did not support the Obama rule either. This is a point the supporters of the Obama rule must omit to stand-up their strawman argument. Two, the SAB claims the Trump rule “decreases protection” of U.S. waters. However, it would be more accurate to say it decreases “federal regulation,” not “protection” of the waters. The two terms are not synonymous. Eliminating federal regulation does not necessarily leave the waters unprotected.  State and local governments retain all powers to protect or regulate the intrastate waters no longer covered by the federal government. The 1989 Supreme Court’s Rapanos ruling delineated which waters are interstate or intrastate to respect the principle of federalism enshrined in the Constitution.

Mike Keegan

It would be more honest for the Trump rule critics to argue that we can’t trust states and localities to protect their waters like we can trust the federal regulators. These paternalistic advocates and their experts could even be right, but that is neither liberty nor democracy – it is rather the usurpation of liberty. Much of the environmental law enacted since the late 1960s has been predicated on the theory that the federal bureaucracy cares more about the public and is smarter than the democratically elected state and local governments. Regulators were delegated enforcement authority over state and local governments to protect the public from the decisions of their elected local leaders. In essence, they believe people need to be protected from themselves and their local democratic processes by the experts. This WOTUS debate has less to do with science and more to do with control.  State and local governments could always take the advice of the EPA, their SAB, or any scientific academy.

Federalism’s sovereignty allows for the competition of ideas from the many laboratories of innovation.  However, there is a more virtuous element of federalism – democracy; it allows the very people affected by a policy to decide that policy.

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This is the case in the Trump WOTUS rule; if a water body is wholly within a state, it should be those people through their local democratic processes who determine the content of the regulation. They are the only ones who are affected, pay the cost, and can balance the value of economic advancement with environmental preservation. It is a fallacy to argue this allows for the choice to pollute because actual contamination of the environment is covered under other remedies (i.e. tort, nuisance, etc.).

The alternative to democratic federalism is to have the judgment made for people, on their behalf. In addition to being undemocratic, this results in cynicism because it neglects the necessary community support for regulation and opportunity for political accountability. It is also unsustainable because the cost and dominion of the controlling experts always grow when they don’t have to pay for their regulation. Sustainable environmental policy requires that the people affected by the policy take responsibility for crafting it, knowing they will have to pay for it.

The Trump administration did not decide the delineation of intra versus interstate waters. The Supreme Court and Constitution did and even the dissenters in Rapanos believed some waters were entirely intrastate. If the Trump rule scales back the delineation more than Congress enacted, it is open to judicial, legislative and political accountability. Federalism provides the same corrective at the state and local level.

Instead of the experts and regulators being the vanguard of the people by usurping their control, why don’t we give the power to the people? Let the federal agencies, experts and green-activists take their policies directly to the local community – and let the people decide for themselves. If they can get the community’s support, all the better – it will be clear who made what decisions and who is accountable. “Think globally and act locally,” is still true today.

Mike Keegan is an analyst for the National Rural Water Association (NRWA), a non-profit association of more than 31,000 small and rural community water systems.

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