Congressional paralysis equals regulatory whiplash

"I've got a pen, and I've got a cellphone," President Barack Obama famously proclaimed in 2014 as his strategy to circumvent congressional paralysis. However, just as his predecessors and successors painfully came to know, such enactments are quickly undone -- the next administration also having a pen and, likely, a better cellphone.

The cycle of regulatory ping-pong every four or eight years is not new, but it seems especially pronounced (and absurd) today as we see the vice president from two administrations ago now seeking to redo what the last guy undid from what his prior boss did. The answer, of course, is to have Congress act, as evidenced by the perseverance of the Affordable Care Act. But today's 50-50 Senate and the narrowest of margins in the House undoubtedly have President Joe Biden reaching for his pen and cellphone.

The realm of environmental regulation is a particularly apt case study. For example, President Obama had to watch from the sidelines as his two signature initiatives under Environmental Protection Agency Administrator Gina McCarthy -- redefining "waters of the United States" under the Clean Water Act and the first-ever regulation of greenhouse gas emissions from existing stationary sources, the "Clean Power Plan" -- were erased from his legacy. Three of the areas currently in play illustrate the absurdity of the administrative regulatory cycle: the National Environmental Policy Act, defining "waters of the United States" under the Clean Water Act, and regulation of greenhouse gases under the Clean Air Act.

NEPA

The National Environmental Policy Act is the federal equivalent of our own beloved California Environmental Quality Act, with several significant distinctions. Like CEQA, the statute is supplemented with implementing regulations that are to undergo periodic review and revision. The federal entity responsible for overseeing implementation and proposing changes to NEPA regulations is the White House Council on Environmental Quality.

On Aug. 15, 2017, President Trump signed an executive order titled "Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects." As the name makes clear, the intent was to streamline NEPA review of infrastructure projects on federal land or that involved federal funding or permitting. CEQ issued the regulatory reforms on July 16, 2020, and opponents were quick to lambaste provisions curtailing the analysis of climate impacts and greenhouse gas emissions for infrastructure projects. At least five lawsuits followed, challenging the regulations.

With his seat behind the Resolute Desk barely warmed, newly inaugurated President Biden signed an executive order titled "Tackling the Climate Crisis at Home and Abroad" that, among other things, orders the chair of CEQ to "ensure that Federal infrastructure investments reduce climate pollution and that Federal permitting decisions consider the effects of greenhouse gas emission and climate change."

On Oct. 7, 2021, CEQ issued notice of its intent to revise the NEPA regulations "to generally restore regulatory provisions that were in effect for decades before being modified in 2020."

Waters of the United States

Several of the most exacting regulatory provisions of the Clean Water Act apply only to "waters of the United States." So what are WOTUS? Apparently neither Congress nor the Environmental Protection Agency nor the Army Corps of Engineers nor the Supreme Court knows for sure.

The regulatory ping-pong over WOTUS puts all others to shame. Picking a rather arbitrary point in recent history to begin the saga, the EPA and Corps promulgated regulations in 1987 identifying seven features that constituted WOTUS. Those criteria spawned consistent litigation, landing the issue before the Supreme Court in two prominent cases. The first, Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001), held that just because a wholly intrastate puddle was big enough for a duck to land in and then pick up and fly across state lines, it did not create sufficient impact on interstate commerce to justify the exertion of federal authority. SWANCC did not invalidate any regulations; it just said the Corps' implementation of them as to wholly intrastate features did not demonstrate an interstate commerce nexus sufficient to pass constitutional muster.

Later, in Rapanos v. United States, 547 U.S. 715 (2006), the Supreme Court could not even come to a majority opinion. A conservative plurality of four under Justice Antonin Scalia would have held that a resource had to be "relatively permanent" to be WOTUS. A liberal plurality of four under Justice John Paul Stevens would have held that if the agencies say it is WOTUS, it is WOTUS. The last justice standing, Justice Anthony Kennedy, said a resource is a WOTUS if it has a "significant nexus" to a clearly navigable water. Chief Justice John Roberts wrote a concurring opinion chastising the agencies that the inevitable chaos certain to reign in light of the court's 4-1-4 dysfunction was wholly avoidable had they undertaken a coherent rulemaking as was called for in the wake of SWANCC.

President Obama sought to rein in the breadth and intense factual inquiry of "significant nexus" under a rulemaking dubbed the "Clean Water Rule" in 2015. The rule was fairly characterized as an expansion of jurisdiction in the interest of greater clarity for the regulated community as to what constitutes WOTUS. Litigation commenced immediately. The result was a patchwork of injunctions, with some states being governed by the Clean Water Rule and others being kicked back to the '87 regulations.

In the meantime, the Trump administration came to office and issued a rule purporting to repeal the Clean Water Rule. But that rule drew immediate litigation challenges on procedural grounds leading to yet another layer of injunctions and confusion for the regulated community. Eventually, the Trump administration effectively repealed the Obama rule and replaced it with its own, the "Navigable Waters Protection Rule," which was fairly characterized as a contraction of jurisdiction. Again, litigation ensued.

With that litigation still pending, in comes the Biden administration, noting their disapproval of the Trump rule but not declaring a specific course of action for replacing it. That brought tremendous pressure from environmental interests to repeal the Trump rule immediately (sound familiar?) pending formulation of a replacement rule. Fortunately for those interests, one of many district courts considering challenges invalidated the Trump rule. The Biden administration used that occasion to say it would not appeal the decision, leaving the Trump rule unenforceable pending promulgation of a new rule. So, yes, we are now back to the 1987 regulations, SWANCC and Rapanos notwithstanding.

Greenhouse Gas Emissions

Technically not qualifying as ping-pong yet, given its relatively recent advent on the regulatory scene, is greenhouse gas emissions regulation. The Obama Clean Power Plan was truly a watershed enactment. Creating an unprecedented bridge from Massachusetts v. EPA, 549 U.S. 497 (2007), where the Supreme Court ruled that carbon dioxide emissions from mobile sources could be regulated under the Clean Air Act, the Clean Power Plan for the first time limited emissions from existing stationary sources, primarily coal-fired power plants. Among other things, the regulation was designed to reduce emissions consistent with U.S. pledges under the Paris Agreement. Litigation ensued, and the Supreme Court, for the first time ever, enjoined the rule's implementation pending resolution of the litigation.

Although the matter was fully briefed and pending decision before the U.S. Court of Appeals for the D.C. Circuit, the Trump administration asked the court to hold the matter in abeyance. Whether in response to that request or otherwise, the court failed to rule prior to the Trump administration's repealing the Clean Power Plan and replacing it with a rule that had no notable regulatory mandates of consequence.

It appears the next chapter here depends on the less-than-certain fate of the Biden Build Back Better reconciliation bill currently pending in Congress. Should it pass, it will not be subject to future rounds of administrative ping-pong. If it doesn't ... wait, whose serve is it again? 