The familiar darkness of the waters of the Gulf of Mexico can be overwhelming for beachgoers visiting Galveston Island. Runoff from the Mississippi River goes to local beaches and causes the water downstream to turn cloudy and brown. Mud is one factor and river runoff is another. However, concern tends to escalate when pollution enters the nation-wide river runoff discussion, especially when smaller navigable intra-state water bodies push pollution into large areas. larger interstate waters often involved in commerce (ie, Mississippi River, Great Lakes, Ohio River).
A research analysis recently published in the journal Science, co-authored by Victor Flatt, Dwight Olds Chair of Law at the University of Houston Law Center, demonstrates how the purported benefits of withdrawing federal oversight over these transboundary waters and failing this accountability to individual states did not take into account the economic and scientific evidence that said otherwise and violated the limits of justifiable law.
In the article, “A water rule that turns a blind eye to transboundary pollution,” Flatt contributed as the sole legal researcher, explaining how the 2020 Navigable Waters Protection Rule, which rescinded federal oversight Interstate Waters, did so with the open assumption that state governments would fill the surveillance gap. Not only was the evidence pointing to another outcome, but the rationale for the rule’s federalism was incorrect, the researchers said.
“New administrations can implement new policies, but those policies must be consistent with the statutes, the Constitution and be logical,” said Flatt. “The legal sentence is: ‘they cannot be arbitrary and capricious.’ An administration can only do what is permitted by law and must be rational and logical. It fails. It is a disagreement of policy, but it is ‘is a policy disagreement that is outside the bounds of what is permitted by law. “
The cleanliness of large cross-border rivers is the responsibility of the federal government and the Clean Water Rule (CWR) of 2015 promulgated under the administration of former President Barack Obama. This included small wetlands and streams that could push pollution runoff to these larger rivers that divide several states. In 2020, under the Navigable Waters Protection Rule (NWPR), federal regulation of some of these smaller, connected bodies of water was removed, leaving individual states responsible for filling in the gaps. However, many states have not asserted control over these waters as the administration of former President Donald Trump assumed, leaving room for pollution to flow into interstate waters.
“A striking example is the 31-state challenge of the 2015 CWR in court, arguing that it would impose excessive costs. Inexplicably, the economic analysis of the NWPR predicted that 14 of these states would now change position ”, according to Science article. As Flatt explains, this assumption was the misstep.
“The Corps and EPA said in their analysis that 31 states would step into the breach and help protect wetlands that the federal government no longer protects,” said Flatt. “But best practices for economic analysis say you can’t speculate on the future actions of states. When I looked at this, I found that many of those states are even prohibited from enacting a rule more stringent than the federal government. The data here is wrong. “
In March, President Joe Biden’s administration proposed a $ 111 billion investment in water infrastructure. Flatt said implementation of the investment will include a review of previous policies and research, including information uncovered in the Science article.
The research to inform this article was funded by the External Advisory Committee on Environmental Economics, with funding and support from the UCLA Luskin Center for Innovation and the Alfred P. Sloan Foundation.
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