Today, the Environmental Protection Agency and the Army Corps of Engineers finalized a rollback of a 2015 clean water protection known as the “waters of the United States rule.” While this has been expected since Trump ordered it early in his presidency, it doesn’t change the fact that it’s a violation of the Constitution’s Domestic Emoluments Clause.
The federal Clean Water Act applies to “waters of the United States,” a term that has resulted in considerable argument and litigation. Everyone agrees that it covers the Mississippi River, but what about an intermittent stream or wetland on a golf course? The difference can be huge: if a water body is not covered by the Clean Water Act, then as far as federal law is concerned, it’s perfectly legal to pollute, dredge, or fill it. And that can have serious environmental consequences for waters that are covered. On the other hand, companies (like golf course operators) that have these waterbodies on or near their properties sometimes profit from being able to engage in environmentally destructive activities without needing to meet any federal environmental standards.
Soon after entering office, President Trump issued an executive order to repeal and replace the “waters of the United States” rule that had been promulgated in 2015 by the previous administration. At the time, we pointed out that, if President Trump’s order resulted in a regulatory change that would financially benefit his own businesses, it would likely violate the Constitution’s Domestic Emoluments Clause, which provides: “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.” (This is a separate provision from the perhaps better-known Foreign Emoluments Clause.)
Later in 2017, EPA and the Army Corps proposed to rescind the 2015 rule and go back to the old, less-protective status quo. Relaxing clean water protections will financially benefit golf courses, almost certainly including golf courses owned by President Trump. And presidentially-directed executive action that financially benefits the president’s own businesses violates the Domestic Emoluments Clause—he’s using the power of government to improve the profitability of his own businesses. We asked EPA and the Corps to quantify the expected financial benefits to presidentially-owned golf courses, and to either withdraw the rule, or carve out an exception for properties owned by the president of the United States.
Joined by the New Jersey-based Raritan Headwaters Association, which works in the 470-square mile Raritan Rivers headwaters region where Trump’s Bedminster golf club sits, we filed a formal public comment (and a later supplemental comment with new information) in that rulemaking proceeding.
Our comments laid out the detailed legal argument for how regulatory relaxation constitutes a domestic emolument, and the financial benefits to particular Trump golf courses, such as the Trump International West Palm Beach. Thousands of members of the public joined us.
After some delay, today EPA and the Army Corps of Engineers published the final rule in the Federal Register and released their response to public comments. The depth of analysis was, to say the least, underwhelming. Here is the entirety of the agencies’ response:
Moreover, this rulemaking to repeal the 2015 Rule and restore the pre-existing regulations is not a violation of either the Foreign or Domestic Emoluments Clause. The agencies find that the commenter has not demonstrated that there would be any change in the jurisdictional status of any portion of the Trump Organization’s golf courses, and the commenter has likewise not shown how the Emoluments Clauses are implicated. The Foreign Emoluments Clause prohibits acceptance of any “Emolument, Office, or Title . . . from [a foreign government],” U.S. Const. art. I, § 9, cl. 8, and the Domestic Emoluments Clause prohibits acceptance of “any other Emolument” “for [the President’s] Services” “from [a domestic government],” id. art. II, § 1, cl. 7. The commenter does not explain or demonstrate how the proposed rule would violate these clauses.
This response is, to be charitable, non-responsive. First, no one said anything about the Foreign Emoluments Clause; this is simply a red herring. Second, our comments included detailed legal and economic argument about how the regulatory relaxation would benefit Trump’s golf courses and constitute a domestic emolument. And third, requiring that a public commenter “demonstrat[e] that there would be [a] change in the jurisdictional status of any portion of the Trump Organization’s golf courses” is absurd, precisely because the pre-2015 rule was so vague and open to interpretation (clarifying and making it more predictable was, in fact, the impetus for the 2015 rule) that it would be virtually impossible to provide such a “demonstration” with publicly available information. What we did say on this point is that “[t]he ambiguity and uncertainty that accompanied the application of the previous rule would make it extremely difficult for staff to withstand the temptation to reach a favorable conclusion for a Trump branded property.” And we specifically asked the agencies to “provide an analysis of how the rescission of the 2015 rule would impact the Trump golf courses to determine the full scope of the benefits and advantages that would be conferred upon them,” which they declined to do.
What this means and next steps
As we evaluate how to respond to the agencies’ decision, it’s also worth noting that this regulatory process is divided in two parts. Today’s action restored the pre-2015 regulations. But in 2019 EPA and the Corps proposed a new rule even less protective than the pre-2015 status quo. We commented on that too, but given the agencies’ scanty consideration of constitutional requirements in this rulemaking, it’s unlikely that they’ll do better the next time.
In the meantime, one thing is clear: in the Trump era, government agencies are perfectly happy to follow a presidential order to weaken a legal regulation if compliance costs the Trump Organization money. And when the public points out that this violates the Constitution, the government’s response is “get over it.”