Clean Water Act Rollback?

Just as lawyers sometimes learn their craft working as government prosecutors before switching to the more profitable business of defending clients, EPA attorneys sometimes switch sides to guide corporate clients through the maze of regulatory landscape.

Balch & Bingham Partner Rich Glaze, with the firm’s Environmental & Natural Resources Practice, worked for the Environmental Protection Agency in Atlanta for several years. He now advises clients on the Clean Water Act and fields questions about Obama-era policies that look likely to fall under the new administration, particularly the Waters of the United States rule. Many companies believe that EPA overreached its authority on that rule, especially as it affects wetlands.

President Donald Trump has instructed the EPA and the U.S. Army Corps of Engineers to reconsider whether federal jurisdiction extends to non-navigable streams. So what is Glaze telling his clients about what this bodes for business interests such as utilities and energy providers?

First, it was a considerable process to get the rule enacted, and, even though WOUS was largely stayed by federal court rulings, it will take an equivalent process to undo it, he says. “I imagine a new rule could be written by this fiscal year, but the notice and comment period is going to take longer than that, and that’s where the rubber meets the road, ” he says.

If the new president chooses to merely rescind Obama’s water directives and not write any new rules, the picture could come into focus more quickly. But if Trump decides to roll back the definition of navigable waters and walk the Clean Water Act back to its earliest days, he might see as much resistance from Congress as Obama got when WOUS was unfurled, Glaze says. 

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As one who saw three changes of administration while at the EPA, Glaze can attest there are lots of ways for the president to affect environmental policy without writing new rules. “If you want to slow down the mission of an agency, you can just cut their budget, ” he says.

He acknowledges, too, that while business may generally favor less regulation, it has an obvious interest in clean air and water. “Many of the companies we represent have a robust environmental program and take seriously their custodianship of the environment. Do they want less regulation? I think the answer is yes, but they don’t want the environment to go back to the way it used to be.”

Text by Dave Helms

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