The Environmental Protection Agency and the Army Corps of Engineers finalized a rollback of clean water protections. The rollback will mean higher profits for many private golf courses. And in the case of President Trump’s golf courses, that violates the Constitution.
The details of the regulation are somewhat complicated. 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.
In 2015, after years of delay, the EPA and Corps finalized the “Waters of the United States” (or “WOTUS”) rule to interpret this statutory term. The 2015 rule clarified the process and criteria for determining whether a waterbody fell under federal jurisdiction—and, in some cases, brought more waterbodies under that umbrella. But the rule was challenged in court by industrial, agricultural, and other corporate interests, and only took effect in 22 states and D.C.
Soon after entering office, President Trump issued an executive order to repeal and replace the 2015 rule. 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 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. 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 in that rulemaking proceeding. Thousands of members of the public joined us. (EPA and the Corps re-opened that rule for public comment in 2018, and we submitted a supplemental comment with new information; and in the meantime, in 2019 EPA and the Corps proposed a new rule even less protective than the pre-2015 status quo, and we commented on that too.)
Our comments all made the same basic points. 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.
Where we are now
EPA and the Corps have now finalized the rollback to the pre-2015 status quo. (They haven’t yet finalized the second step of enacting even less protective rules.)
In many cases, golf courses like Trump’s won’t need to follow federal environmental standards when spraying pesticides, dredging, filling, or otherwise affecting waterbodies on or adjacent to their courses. This means that Trump (like other golf course owners and operators) can continue to profit at public expense. And since EPA and the Corps declined to adopt our suggestion to carve out an exception for presidentially-owned properties, it means that the government is complicit in keeping Trump’s pockets full by slashing environmental protections that might have cut into his profits a bit.
As of today, we don’t know why EPA and the Corps claim this is acceptable; a full response to comments won’t be made publicly available until the final rule is published in the Federal Register in the coming days. But we do know that they rolled back an environmental standard in a way that financially benefits the president of the United States, in violation of the Domestic Emoluments Clause.
Photo: 首相官邸ホームページ [CC BY 4.0 (https://creativecommons.org/licenses/by/4.0)]