EPA revises waters of the United States definition to conform with SCOTUS ruling

By

Caitlin Styrsky

The Checks and Balances Letter delivers news and information from Ballotpedia’s Administrative State Project, including pivotal actions at the federal and state levels related to the separation of powers, due process, and the rule of law.

This edition: 

In this month’s edition of Checks and Balances, we review a new EPA rule issued to comply with the Supreme Court ruling in Sackett v. EPA; recommendations to OIRA regarding Circular A-4 changes; and new federal SNAP work requirements.

At the state level, we take a look at a lawsuit over a Missouri rule opposing ESG in private investments; child labor laws in Iowa; and an emergency order to ban firearms in Albuquerque, New Mexico.

We also highlight a dissenting opinion from Judge John Nalbandian of the U.S. Court of Appeals for the Sixth Circuit regarding the nondelegation doctrine and intelligible principle test. We wrap up with our Regulatory Tally, which features information about the 200 proposed rules and 299 final rules added to the Federal Register in August and OIRA’s regulatory review activity.

In Washington

EPA revises waters of the United States definition to conform with SCOTUS ruling

What’s the story?

The Environmental Protection Agency (EPA) and the U.S. Department of the Army announced a final rule, effective September 8, 2023, to revise the definition of waters of the United States to conform the definition to the U.S. Supreme Court’s decision in Sackett v. EPA (2023). 

The EPA and Department of the Army issued a rule on January 18, 2023, in an effort to revise the definition of waters of the United States subject to regulation under the Clean Water Act. SCOTUS ruled on May 25, 2023, that the EPA’s regulatory jurisdiction was limited to wetlands with a continuous surface connection to waters of the United States. The decision in the case limited the EPA’s regulatory authority of wetlands under the Clean Water Act and invalidated the January 2023 rule. 

Senator Shelley Moore Capito (R-W.Va.) issued a statement arguing against the EPA’s revised rule and citing previous arguments that the rule demonstrated regulatory overreach. Capito stated, “I’m disappointed this rushed rule lacks public outreach and real transparency, results in a definition that is at odds with the law, and will likely be rejected once again in the courts.”

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Recommendations to update Circular A-4

What’s the story?

Susan Dudley, director of the George Washington University Regulatory Studies Center, and others sent a letter to Office of Information and Regulatory Affairs (OIRA) Administrator Richard Revesz recommending changes to the regulatory guidance document Circular A-4 that follow what the letter refers to as objective evidence and accepted principles. 

Circular A-4 was required by Executive Order 12866 (1993) to provide guidance to agencies on conducting regulatory analysis. OIRA proposed revisions to Circular A-4 on April 6, 2023, as part of President Joe Biden’s (D) Executive Order 14094: Modernizing Regulatory Review. Dudley and other representatives of the Society for Benefit-Cost Analysis and the Journal of Benefit-Cost Analysis argued that “[s]ome of the proposed changes depart from widely accepted practices, principles, and evidence, and could be perceived as favoring particular policy preferences.” The letter offered recommendations to update the Circular in a bipartisan manner.  

The letter recommended developing general principles to streamline guidance to agencies operating under different statutory authorities. It also included recommendations such as adding advances in behavioral science to provide insight on public responses to policy, incorporating the geographic scope of cost-benefit analysis, and removing principles that the authors argue are not widely accepted regarding distributional weights and a default discount rate.  

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New federal SNAP work requirements took effect September 1

What’s the story?

New Supplemental Nutrition Assistance Program (SNAP) work requirements went into effect on September 1, 2023, requiring some older Americans to work to qualify for food assistance, while also exempting other groups from working. 

The SNAP work requirement modifications were included in the Fiscal Responsibility Act (FRA) enacted on June 3, 2023, as part of negotiations between President Joe Biden (D) and House Speaker Kevin McCarthy (R) to raise the debt ceiling. The U.S. Department of Agriculture (USDA) issued guidance on June 9, 2023, outlining the SNAP provisions included in the act. 

The USDA, pursuant to the FRA, will gradually increase the age limit for work requirements for individuals to be eligible for the food assistance program. The age to meet work requirements increased from 49 to 50 on September 1, 2023; it will increase to 52 on October 1, 2023, and to 54 on October 1, 2024. The federal legislation also added new exemptions for work requirements for some people. 

The Center on Budget and Policy Priorities, a nonpartisan fiscal policy research group, argued in a report that the new work requirements “would put almost 750,000 older adults aged 50-54 at risk of losing food assistance … including many who have serious barriers to employment as well as others who are working or should be exempt but are caught up in red tape.”

Following the passage of the FRA, McCarthy argued in remarks on the House floor, “Work-capable adults without dependents will get a job, learn new skills, and earn a paycheck because of this bill’s new welfare reforms. These reforms are going to change people’s lives. Families will be stronger and more self-sufficient.”

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In the states

Wall Street trade group sues Missouri over rule opposing ESG in private investments 

What’s the story? 

The Securities Industry and Financial Markets Association (SIFMA) filed a lawsuit in the U.S. District Court for the Western District of Missouri on August 10, 2023, against the state of Missouri’s recently enacted rule requiring the disclosure of ESG considerations to private investors. SIFMA claimed the state overstepped its authority and violated federal law. 

Missouri Secretary of State Jay Ashcroft (R) issued the rule effective July 30, 2023, requiring broker-dealers to disclose social or non-financial objectives related to the buying or selling of investment products. SIFMA argued that the rule violates the National Securities Markets Improvement Act of 1996 (NSMIA), which grants the U.S. Securities and Exchange Commission “exclusive authority to regulate the conduct of any investment adviser managing $100 million or more in client assets,” according to the lawsuit. SIFMA also claimed in the lawsuit that the rule violates the Employee Retirement Income Security Act of 1974 (ERISA) and “fail[s] to acknowledge that federal law, regulations, and applicable rules already require financial advisors to act in the best interest of their clients when providing personalized investment advice.”

Ashcroft argued in response to the lawsuit that the rule did not conflict with federal securities law and “implements client disclosure standards pertaining to security investments and how investment advisors and broker-dealers disclose investment strategies that propagate values-based agendas that are not purely focused on generating profit for their clients,” according to Reuters. 

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New Iowa child labor law may conflict with federal law

What’s the story? 

Iowa Governor Kim Reynolds (R) signed a new bill into law on May 26, 2023, to alter child labor laws in the state to provide “common sense labor provisions that allow young adults to develop their skills in the workforce,” according to a press release. The law made changes to the amount of hours minors are allowed to work and the type of work activities that minors are authorized to complete. The law also allows employers to submit waivers for 16- and 17-year-olds to take part in hazardous work activities. 

The Department of Labor sent a letter on August 24, 2023, in response to a request from State Senator Nate Boulton (D) requesting technical assistance regarding the relationship between the new state law and federal child labor law. The department argued in the letter that the state law conflicts with federal law because it is less restrictive than the Fair Labor Standards Act (FLSA) and therefore “is inconsistent with federal law to the extent that an employer or child is covered by the FLSA.” The department stated that employers found in violation of federal child labor laws may be subject to penalties. 

Governor Reynolds (R) said in a statement that the state “is one of 21 states across the nation — including Illinois and Minnesota — with employment laws related to minors that don’t comply with federal law,” and argued that Iowa “believe[s] in the dignity of work and want[s] to instill those values in the next generation,” according to The Globe Gazette. 

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New Mexico governor temporarily bans firearms in Albuquerque

What’s the story? 

New Mexico Governor Michelle Lujan Grisham (D) issued an emergency order on September 8, 2023, prohibiting firearms in Albuquerque and Bernalillo County for 30 days. The firearms restrictions were enacted in response to an executive order the governor issued on September 7, 2023, declaring gun violence to be a public health emergency. 

The emergency order suspended open and concealed carry laws in the area and prohibited guns on public property. Lujan Grisham called for state law enforcement officers to enforce the order and stated that gun owners found in violation of the order may face fines of up to $5,000. 

The order faced legal challenges arguing against the constitutionality of the ban. Four lawsuits were filed as of September 13, 2023, including a lawsuit filed against Lujan Grisham by The National Association for Gun Rights requesting an injunction to stop the order from being enforced. The group argued in the lawsuit that the emergency order violates the Second Amendment and cited the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen as precedent. The group claimed in the subsequent press release to the lawsuit that the ban “is the very danger of runaway executives who believe that they have unilateral authority to suspend the Constitution under the guise of an ‘emergency.’”  

New Mexico Attorney General Raúl Torrez (D) stated in a letter to the governor that he would not defend Lujan Grisham in the pending lawsuits because he does “not believe [the emergency order] passes constitutional muster,” according to NM Political Report. 

U.S. District Judge David Urias granted the National Association for Gun Rights’ request for a temporary restraining order of the ban on September 13. The restraining order will remain in effect until a hearing on October 3, 2023, to consider a motion for a preliminary injunction. The governor responded to the temporary restraining order stating that, “Over the past four days, I’ve seen more attention on resolving the crisis of gun violence than I have in the past four years,” according to Albuquerque Journal.  

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Nondelegation doctrine and the intelligible principle test

In a dissenting opinion in the case Allstates Refractory Contractors v. Su, Sixth Circuit Court Judge John Nalbandian argued that the Occupational Safety and Health Act (OSHA) grants what he referred to as unfettered discretion to the Secretary of Labor to establish health and safety standards. Nalbandian claimed that the act violates the nondelegation doctrine because it does not meet the minimum requirements of the intelligible principle test:

Bound by the Supreme Court’s development of the “intelligible principle” test, I believe the delegation of power under these provisions violates Article I. That’s because the provisions provide (1) no fact-finding or situation that prompts Executive action and (2) no standard that sufficiently guides discretion on what health and safety standards are appropriate. And that’s even more so the case because the broad scope of delegated power here—creating permanent standards “for every working man and woman in the Nation”—demands that Congress be correspondingly detailed in how it limits agency discretion. Id. § 651(b). Under a faithful application of Supreme Court precedent, Congress failed to “lay down by legislative act an intelligible principle to which the person or body authorized to [act] . . . is directed to conform.” 

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  • Click here to read the full text of Judge John Nalbandian’s dissenting opinion.

Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

OIRA’s August regulatory review activity included the following actions:

  • Review of 57 significant regulatory actions. 
  • Five rules approved without changes; recommended changes to 49 proposed rules; two rules withdrawn from the review process; one rule subject to a statutory or judicial deadline.
  • As of September 1, 2023, OIRA’s website listed 113 regulatory actions under review.
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