SCOTUS Versus the EPA

The Supreme Court has been in the news a lot lately. The court has been revisiting old rulings—some of which have stood for decades—with the conservative majority overturning or revising those rulings.

Given the state of our politics this has caused a lot of heated comment from both ends of the spectrum. Now, while most of us have our political opinions CONTRACTOR is, thankfully, not a political magazine.

However, we are a plumbing magazine, and when I started seeing online comments about how recent Supreme Court decisions were “gutting” the EPA or “scraping” the Clean Water Act I decided to do some investigating. Contaminant- and pathogen-free drinking water is a top priority for most of my readers—and strikes me as about the most apolitical topic you could find.

(Water safety, by a happy coincidence, was on the calendar for August as one of this issue’s topics; we have a great Forum piece on what constitutes an effective water management program from some of the experts at Watts Water Technologies.)

So, first off, the EPA—the government agency that, as part of its brief, enforces the Clean Water Act—isn’t going anywhere. Near as I can figure (and please keep in mind my only legal training comes from watching Law and Order re-runs) the real issue is with how that Act is going to be enforced moving forward.

When a company wants to start a project that may affect the water in an area they first need to get approval from the local state (or tribal) government. Under section 401 of the Clean Water Act, as interpreted by the EPA, those governments had broad authority to reject those projects. For instance, a local government could, under the Act, reject a company if its planned project burned a large amount of fossil fuels (something that doesn’t have a direct impact on water quality).

Now, some companies (mostly in the energy sector) didn’t like that authority being quite so broad and petitioned for a change in the interpretation. The Trump Administration agreed and issued an executive order directing the EPA to draft regulations friendlier to those projects.

In response, environmental groups brought suit. A district court judge agreed and vacated the rule. The energy companies sued back and the Supreme Court stepped in, putting the case on their emergency docket (which is also called the “shadow docket,” and if that isn’t great title for a John Grisham novel I don’t know what is).

The SCOTUS ruled in favor of the energy companies and issued a stay of the lower court ruling, which means the interpretation that’s more favorable to the energy companies is the one that’s in effect. For now. There are new proposed rules undergoing a public comment period. The EPA says it will publish a final rule in Spring 2023—at which point that rule will probably face its own set of challenges.

It's enough to make your head spin. For anyone worried about the EPA’s WaterSense program (which has, in the past 16 years, saved Americans more than 6.4 trillion gallons of water), worry not; as a voluntary public/private partnership, there is nothing there to enforce. Instead, all the EPA does is administer the program at an annual cost of about $2 million, which, considering the billions of dollars saved in water and energy costs makes it one of the best deals the federal government has running.