By Rich Juliano, General Counsel, American Road and Transportation Builders Association
President John F. Kennedy is credited with saying, “Victory has a thousand fathers, but defeat is an orphan.” Sure enough, we celebrated an early Father’s Day here in Washington on May 25, courtesy of the U.S. Supreme Court.
Undoubtedly, the Court’s ruling that the Environmental Protection Agency (EPA) exceeded its authority in developing new wetlands regulations is a major win for the transportation construction industry. It means EPA will need to rewrite its “Waters of the United States” (WOTUS) rule, which has risked permitting delays for transportation projects.
The favorable outcome in Sackett vs. EPA resulted from many years of partnership, perseverance and member support. Since 2005, ARTBA has advocated tirelessly for reasonable Clean Water Act (CWA) jurisdiction through multiple administrations. Our federal district court litigation began eight years ago, with the National Stone, Sand & Gravel Association (NSSGA) joining us in the legal trenches as part of a multi-industry coalition.
At issue in Sackett was whether the agency could require a permit for any area with a “significant nexus” to a navigable waterbody, such as a river, lake or stream. The EPA never defined “significant nexus,” causing confusion for the entire transportation construction industry. The Court called the “significant nexus” test “particularly implausible” and held the EPA has “no statutory basis to impose it.”
In our brief to the Court, ARTBA and NSSGA critiqued the “significant nexus” test, noting it has “no inherent limiting principles” and empowers federal agencies to assert federal jurisdiction “well beyond the limits set by Congress.”
ARTBA and NSSGA maintained that defining WOTUS in such an expansive way improperly creates permit obligations for features such as roadside ditches, which serve the necessary safety function of collecting water during and after rain events. This type of overregulation serves only to delay critical infrastructure improvements and increases costs without providing demonstrable environmental benefits.
In its efforts to build projects safely and efficiently, Sackett is a victory for the industry, but it is by no means the end of the fight. In April, a North Dakota federal court temporarily blocked the WOTUS rule from taking effect in 24 states while it considers the case brought by ARTBA and its allies. With the clarity provided by the Sackett decision in hand, our coalition plans to ask the lower court to vacate the rule, since it is now legally invalid. We will continue advocating for a clear, common-sense definition of the CWA’s reach.
Finally, there are true “fathers” (and “mothers”) within ARTBA who deserve special recognition for this achievement. Several members and chapters have supported our “Transportation Makes America Work!” (TMAW) program and provided the resources for ARTBA to help lead this coalition. And on a personal note, the Sackett ruling came as our colleague Nick Goldstein wrapped up nearly 19 years leading our association’s regulatory and litigation efforts. While Nick is headed to federal service at the Small Business Administration’s Office of Advocacy, his legacy at ARTBA is secure, in no small part because of his leadership in “parenting” better WOTUS policy.