The writing is now on the wall. The U.S. Supreme Court’s recent ruling (6-3 in West Virginia v. EPA on 30 June 2022) undercuts the Environmental Protection Agency’s (EPA) authority in its ability to address the myriad of water challenges before us, including water quality, drought, and pollution. For decades, the executive-led agency has filled a leadership vacuum created by political gridlock and increasing polarization in Congress to adapt water-related regulations to today’s environment, whether it be contaminants of emerging concern or industrial runoff.
According to the West Virginia decision, the EPA does not have the legal authority, under the Clean Air Act, to set up an emissions trading program to reduce the power sector’s carbon emissions. The bigger takeaway, however—and more impactful in the long term for federal regulators as a whole—the majority opinion leans on the “major questions” doctrine that states federal agencies may not rule on matters of “great economic and political significance” without direct approval from Congress. Essentially, Congress and state policymakers are the arbiters of environmental policy.
This matters for water because the EPA, which is responsible for implementing the Clean Water Act, Safe Drinking Water Act and other conventions, appears to have lost its legal authority to regulate water nationwide. It is not a secret that there is a demonstrated paucity of congressional leadership, consensus, and scientific expertise on Capitol Hill to tackle water quality, climate change, and contaminants of emerging concern. Relying on a polarized Congress and self-interested corporations with lobbyists to guide us through the minefield that lies before us is naïve, at best. Congress and state legislatures lack the scientific, technical, and interest in regulating water. Look no further than the most recent pandemic to climate change.
Given the tenor of the current Supreme Court and what lies ahead, Bluefield’s team of water experts identified what this could mean for water regulations and markets strategies going forward.
- Scope of the Clean Water Act called into question: At the start of 2020, the Supreme Court announced it would review Sackett v. EPA in October, a dispute to define wetlands and whether they should be considered “waters of the United States” (WOTUS) and subject to protection under the Clean Water Act (CWA). After years of back-and-forth, the anticipated ruling could have significant impact on the breadth of the Clean Water Act’s purview and the farmers, industries, and municipalities in proximity to waterways. The EPA’s and the U.S. Army Corps of Engineers’ staff has reported that at least 18% of streams and 51% of wetlands nationwide would not be protected under a revised definition of WOTUS, thereby potentially reshaping the permit and compliance landscape for companies going forward.
- States’ power to take water actions could be weakened: On 14 June 2022, the U.S. Bureau of Reclamation, a federal agency, issued an emergency request for the seven states in the Colorado River Basin to identify 2-to-4 million acre-feet of water use reductions over the next 18 months. In the absence of a state-driven solution, the Bureau of Land Management (BLM) is currently prepared to exert its authority and mandate cuts. However, the recent West Virginia ruling suggests that the BLM, if challenged, might not have ultimate authority to enforce such cuts without legislation from Congress. More than 36 million people, farmers, and power supplies, let alone Mexico, are already exposed declining water levels of the Colorado. Rather than accelerating changes to supply and demand management and alternative water supplies (e.g., reuse, desalination), additional legal pushback further threatens the region and the economies.
- PFAS drinking water regulations are at risk: On 15 June 2022, the U.S. Environmental Protection Agency released new drinking water health advisory levels (HALs) for four PFAS compounds. This represents a next step toward implementing awaited federal maximum contaminant levels (MCLs). As the EPA follows its roadmap to setting a maximum contaminant limit for PFAS, the agency’s authority to enforce at any level could be threatened by corporate or state lawsuits. If MCL targets require congressional action, they are likely to become even more of a political pinball, influenced by a myriad stakeholders. As such, slowdowns in determination and enforcement also impact potential rollout of more advanced treatment technologies (e.g., ion exchange resins)
This year marks the 50th anniversary of the Clean Water Act (CWA), which Congress passed in 1972 to safeguard America’s waterways, making them clean, accessible, and safe for all. It is within my own lifetime that America’s rivers were so heavily polluted that they were catching on fire—essentially cesspools of human, commercial, and industrial waste flowing from state-to-state. Now is not the time to backtrack on the strides made by our predecessors. If anything, it is the time to reflect on the progress we have made and seize on many technological advantages and strategies that have been developed and deployed to address critical infrastructure challenges, including water.