The Environmental Protection Agency (EPA) and the Army Corps of Engineers agreed on Jan. 31 to delay a rule regarding the Clean Water Act for two years as they first repeal and then replace it.

Cue the lawyers!

Ten states – led by New York, Massachusetts and California – are now suing the EPA in an attempt to get the agency to stop delaying a 2015 rule defining “waters of the United States,” or WOTUS, which supporters say was designed to limit pollution in about 60 percent of the country’s waterbodies.

It turns out that farmers and ranchers across the country were up-in-arms about the rule. A problem that plagued much of the Obama administration’s agenda also beset the Obama-era WOTUS rule: There was no obvious limiting principle to the government’s behavior. Government regulators could expand the rule’s jurisdiction any time they wanted without judicial intervention, and certain readings of the rule suggested that federal control could expand to cover virtually all the water, and much of the land, throughout the country.

EPA Administrator Scott Pruitt put a stop to the Obama-era rule after attorneys general from states like Mississippi, Texas and Louisiana (hello, red states!) argued it would be incorrectly applied to places far away from the “navigable waters” over which the feds have legal influence.

So in myriad ways, the environmental litigation in the Trump era is a bizarre mirror-image of the Obama era, with blue states boasting strong environmental groups suing the federal government to take action – the opposite of what occurred during the second half of the Obama administration.

It’s easy to forget that states like Oklahoma – with current EPA Administrator Pruitt as its attorney general – sued Obama’s EPA over a dozen times during the fight over the Clean Power Plan and mercury rules.

But if lawyers’ fees are the only good to come out of this political fight, why not ask if there’s a better way to actually protect the environment from farm-related pollution?

A better method would be to build up environmental markets – the kind that incentivize limiting pollution at the source rather than penalizing polluters later in court. A private marketplace for soil conservation, clean water and wildlife habitat already exists to the tune of at least $3 billion, and that amount could grow if properly supported by legislation.

As it just so happens, a new study co-written by R Street and the Center for American Progress (CAP) highlights how private investment could be leveraged for conservation. The report recommends a number of bipartisan, market-based approaches to increase the economic benefits of ecosystem conservation – all without the government involvement!

What the WOTUS fight is actually over is how to best limit the use and abuse of pollutants, like chemical fertilizers, that can turn into water pollutants. The status quo is for states and environmental plaintiffs to gum up the federal courts system for years. A better answer is to let environmental markets maturate so that environmental values can be priced. It’s a superior solution to endless lawsuits, that’s for sure.


Image credit: diy13