In this Expert Commentary, Reed Rubinstein of Greenberg Traurig LLP’s Washington, D.C., office provides insight into American Petroleum Institute v. Johnson, a case in which the EPA’s efforts to circumvent by administrative rule two U.S. Supreme Court decisions limiting the reach of the agency’s Clean Water Act powers were rebuffed by the U.S. District Court for the District of Columbia.

“American Petroleum is salient for environmental practitioners because it clearly affirms that the EPA’s Clean Water Act jurisdiction is relatively narrow, and to administrative law practitioners because it provides a clear road-map for challenges to the arbitrary exercise of bureaucratic authority,” Mr. Rubinstein writes.  “The District Court rejected EPA’s claim of power extending to the farthest outer boundaries of Congress’ Commerce Clause authority as unreasoned and unqualified, then struck down the Agency’s regulatory definition of the term navigable waters and vacated the challenged rule.

“Stating that the outer limits of Clean Water Act jurisdiction remain a difficult issue, the District Court nevertheless held that EPA was obligated to provide more than conclusory explanations for its determination of legal authority, and to affirmatively justify the obvious disconnect between its determination of jurisdiction and the decision and reasoning of the Supreme Court.”

Section 311(j) of the Clean Water Act, in relevant part, authorized the EPA to issue regulations establishing procedures, methods, and equipment and other requirements for equipment to prevent discharges of oil and hazardous substances from vessels and from onshore and offshore facilities into navigable waters of the United States, and to contain such discharges.  American Petroleum Institute and Marathon Oil Company challenged the new rule, contending that the EPA’s regulatory definition of the statutory term navigable waters extended the EPA’s authority beyond the limits of both the Clean Water Act and the Commerce Clause, and that the EPA failed to offer a rational explanation for its new definition of navigable waters, consequently rendering it arbitrary and capricious under the Administrative Procedure Act.

‘[T]he decision helpfully provides additional definition for the jurisdictional limits of the EPA’s Clean Water Act authority,” Mr. Rubinstein writes. “The District Court cites two potential jurisdictional tests — one by Justice Scalia, defining navigable waters to mean interstate waters that are navigable in fact, relatively permanent, standing, or flowing waters connected to interstate navigable waters, and wetlands with a continuous surface connection thereto; and one slightly more generous view by Justice Kennedy, defining navigable waters to mean interstate waters that are navigable in fact and all other waters with a significant nexus thereto — and points out that it is not entirely clear whether Justice Scalia’s test or Justice Kennedy’s test now establishes the outer limits of Clean Water Act jurisdiction. However, American Petroleum clearly stated that the EPA’s efforts to reach as far as the Commerce Clause might allow failed both of these jurisdictional tests.”

Subscribers to www.lexis.com may read much more about the case and its implications by purchasing Mr. Rubinstein’s entire expert commentary at Reed Rubinstein on American Petroleum Institute v. Johnson.