Professor Sidney Shapiro tells Bloomberg BNA odds of saving stream protection rule are long

Photo of Professor Sidney Shapiro in court.

Sidney A. Shapiro, law professor at Wake Forest University and vice president of the Center for Progressive Reform, testifies on regulatory reform before the Senate Homeland Security and Government Affairs Committee. Sept. 16, 2015, Washington, D.C. Photo: Jay Mallin

Professor Sidney Shapiro was quoted in the following original article, “Stream Protection Rule Declared (Almost) Dead: Now What?,” written by Stephen Lee and published by Bloomberg BNA on Feb. 14, 2017. An excerpt follows:

Environmental groups and their allies in Congress are pondering what they can to do save the stream protection rule, soon to be nixed by President Donald Trump.

But none of the options appear promising, leaving environmental advocates at a loss.

On Feb. 16, Trump is expected to sign a Congressional Review Act resolution nixing the stream rule (RIN:1029-AC63), issued in the last days of the Obama administration, which limits the placement of mining waste in streams.No Confidence in States

Perhaps the most direct solution is for states to step up the enforcement of stream protection within their own borders, regardless of what federal law requires. But few defenders of the stream rule believe that will happen, despite congressional Republicans’ many assertions that the states are doing a good job of controlling pollution.

“I don’t have any confidence that our state would do a good job,” Rep. John Yarmuth (D-Ky.), who argued vehemently against the CRA vote on the House floor, told Bloomberg BNA. “They’ve talked a good game about how they’re up to the task of protecting the environment and protecting our citizens, but they haven’t done it yet. I wish I could have more confidence, but I haven’t seen it.”

The situation is much the same in other coal states, such as West Virginia, said Erin Savage, a campaign coordinator at advocacy group Appalachian Voices. Last month, the Office of Surface Mining Reclamation and Enforcement detailed a range of shortcomings in West Virginia’s state program, including broad failures to enforce environmental regulations.

Option No. 2: Litigation

Environmentalists could also try to challenge the CRA resolution in court. But no such plans are in the works yet, and the odds of success are long, because courts have historically approved congressional legislation “as long as there’s some conceivable rational basis for it,” said Sidney Shapiro, an administrative law professor at Wake Forest University.“The court views it as its role not to get in the way of policy judgments by Congress,” Shapiro told Bloomberg BNA.

Nor could environmentalists realistically argue that the CRA vote violated the concept of separation of powers, because Congress has already established its right to overrule regulations, with or without the CRA, according to Shapiro.

The only new wrinkle the CRA introduces is that it speeds the process along, but Congress has the right to set its own rules for passing legislation, Shapiro said.“It’s one thing to challenge an agency action, but quite a heavy lift to challenge a law passed by Congress,” agreed Celeste Monforton, a former Labor Department policy analyst.

“It really is kind of game over,” Peter Morgan, staff attorney at the Sierra Club, told Bloomberg BNA.