Sir Winston Churchill famously said "those that fail to learn from history are doomed to repeat it.”  Of course he didn't have the nearly four decade long controversy over the reach of the Federal Clean Water Act in mind but the shoe certainly fits so I was amused by a Bloomberg Environment and Energy report today on the several lawsuits that have been filed challenging EPA's eighth attempt to end the longest running controversy in environmental law.   

We have seen this movie at least twice before so there should be no doubt about what happens next. 

The undeniable fact of the matter is that the current EPA attempt is sufficiently similar to the sixth attempt during the Obama Administration that it was certain to face the slings and arrows it is now facing. That sixth attempt was also challenged in the courts, with similar claims made about how it went beyond what was authorized by the Clean Water Act.  The ensuing litigation dragged on long enough that the Trump Administration EPA could replace the sixth attempt with the much different seventh attempt which was also challenged in the courts and ultimately replaced with this eighth attempt.

Along the way it has been settled that such challenges to EPA's attempts to determine the reach of the Clean Water Act have to begin in the District Courts, which necessarily means more litigation steps and more time spent before any litigation is finally resolved. We've also seen that members of the Judicial Branch of all stripes are comfortable enjoining the Executive Branch in the meantime as Professor Johnston points out in the Bloomberg piece. 

Professor Percival points out that the many states and NGOs challenging the current EPA attempt "have been forum shopping." That's also undeniable. But one would have to have a pretty short memory to forget that challenges to the Trump Administration rule were filed in California and Massachusetts, most certainly for exactly the same reason.

The only thing that has certainly changed since the Obama Administration regulation was challenged is the make up of the nation's highest court. Will five Justices of the Roberts Court drive a stake through the heart of the "significant nexus" basis for establishing Clean Water Act jurisdiction in the current EPA regulation?    After all, three of the current members of the Court opposed the notion when then Justice Kennedy offered it and they've been joined by three new Conservative Justices.   We'll know the answer to that question when the Court releases its opinion in Sackett any day now.   I continue to think that's more likely than not but by no means certain.   The Court could also put answering that question off based on a conclusion that the Sacketts' lot is adjacent enough to a Water of the United States so as not to implicate the "significant nexus" notion endorsed by the Ninth Circuit Court of Appeals.   But if the Supreme Court does pull the plug on "significant nexus", EPA will most certainly be sent back to the drawing board. 

Which leaves me with this question for the experts.   The Clean Water Act and the Clean Air Act are about the same age.   Congress and the President most recently refreshed the Clean Air Act for the second time almost twenty five years ago, including to account for things known then that weren't known in the 1970s.  Why has the Clean Water Act not gotten the same attention which it richly deserves.   Until that happens, history will continue to repeat itself.

“The red states and farm interests challenging the new interpretation have been forum shopping in an effort to find a Trump-appointed judge who will strike down the new rule,” said Robert Percival, a law professor at the University of Maryland. “They may well succeed.”

Craig Johnston, a professor at Lewis & Clark Law School and former counsel to the EPA, agreed that it’s highly likely that the Biden administration’s rule will be overturned.

“Right now, district court judges believe that any single one of them can invalidate a rule nationwide,” Johnston said, as evidenced by the overturning of both Trump and Obama’s WOTUS rules. “The people who don’t want the Clean Water Act to be applied broadly can file 20 different cases in 20 different districts, and they only have to win one. It’s a numbers game.”