The internal agency memos recently released by Representative Waxman detailing confusion in the EPA and the Corps enforcement division over CWA jurisdiction following Rapanos have been touted by the environmental community as evidence of the Bush Administration's anti-environment policies. See, e.g., this post from the Climate of Our Future Blog. The problem with this critique, other than the fact that it erroneously equates a principled federalism with anti-environmentalism, is that it lays the blame with the wrong actor. The confusion in CWA enforcement is because Rapanos itself is confusing. If, after all, the courts cannot agree on what the controlling Rapanos standard (compareUnited States v. Robison (11th Cir. 2008) (Kennedy test), United States v. Johnson (1st Cir. 2007) (both Scalia and Kennedy tests), & United States v. Chevron Pipe Line Co. (N.D. Tex. 2006) (Scalia test))---and no one has been accusing the judiciary of being anti-environment---then how can the agencies fairly be subject to the same charge?
Representative Henry Waxman, Chairman of the House Committee on Oversight and Government Reform, yesterday released several internal agency documents revealing the regulatory confusion over the extent of the agencies' CWA jurisdiction after Rapanos, and the effect that confusion has had on enforcement. Given the complexity of the Rapanos decision, and the complete failure of the agencies' two sets of supposed "guidance" to implement that decision faithfully, it's not surprising that the happy upshot should be under- rather than overenforcement.
From US News & World Report. Not surprisingly, a spokesman for Earth Justice is quoted, but no one from the other side is. Earth Justice criticizes the guidance for not adequately fixing the "broken" Clean Water Act, but it's a little unclear how the agencies can make a legislative fix through issuing a nonbinding interpretation of a judicial opinion.