Inside EPA reports that some House Democrats are criticizing their Republican colleagues for attempting to repeal EPA's eighth attempt to determine the reach of the Federal Clean Water Act by regulation.  Like recent rules by EPA during the Obama and Trump Administrations, the Biden rule has already been challenged in court.

Among the reasons Democrat Representative Rick Larson gives for opposing the Republican effort is that, if the Biden EPA rule is repealed, we could be left with what the Supreme Court says the reach of the Clean Water Act should be with no input from the EPA.  That's exactly where we were left after the Trump EPA rule was struck down. 

As faithful readers know, any day now the Supreme Court will issue its opinion in Sackett v. EPA, an appeal of the Ninth Circuit Court of Appeal's adoption of the very "significant nexus" test for determining the reach of the Clean Water Act that the Biden rule adopts.  That "significant nexus" test doesn't appear anywhere in the Clean Water Act and it didn't command the support of a majority of the Supreme Court when then Justice Kennedy proposed it sixteen years ago.  There is every reason to believe that the three Justices who rejected that test then (including the Chief Justice), joined by Conservative Justices Gorsuch, Kavanaugh and Coney Barrett, won't adopt it now.

The cynic in me wonders if Representative Larson was equally concerned about judicial legislating after the Supreme Court invented the "functional equivalence" test for determining whether the Clean Water Act applies to discharges to groundwater in Maui v. Hawaii Wildlife Fund almost three years ago. You couldn't find that test in the Clean Water Act or any regulation either.  

Count me, a lifelong Democrat, as someone encouraged to see legislators trying to legislate.  The dispute over the reach of the Clean Water Act is the longest running controversy in environmental law. Much has changed in the half century since Congress passed the Act and it is long past time for the Act to receive the legislative refresh that its cousin, the Clean Air Act, received over 20 years ago.   Until that happens no member of Congress should have the chutzpah to complain about the executive and judicial branches of our government attempting to fill the void.

"stakeholders could be left with an invalidated rulemaking and a framework for a new, judicially-led test, but no guidance on how to apply that test in the field.”