Attorneys General Say EPA Exceeding Authority With Clean Water Rule Rollback

(CN) – New York and nine other states sued the Trump administration Tuesday for suspending a 2015 rule that was billed as a long-overdue update intended to improve protections to lakes, rivers and wetlands under the Clean Water Act.

The latest permutation of the Act was adopted in 2015 to replace a controversial standard dating back to the late 1970s that often left lawmakers scratching their heads over which specific U.S. bodies of water must be regulated to control pollution and contamination of drinking water.

After years of state challenges to the rule, the 2015 revisions to the Clean Water Act were set to go into effect this month, but on Jan. 31, the Environmental Protect Agency preempted the rule’s enforcement based on a U.S. Supreme Court determination that a federal district court is the most appropriate venue to hear a previously filed challenge to the Obama-era rules

In that underlying lawsuit, more than a dozen attorneys general claim that President Obama’s EPA wrongly applied protections to lands far from traditionally “navigable waters.”

In the complaint filed Tuesday, New York Attorney General Eric Schneiderman and his counterparts from California, Connecticut, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, and Washington claim the Trump administration is violating federal law by delaying the rule for another two years.

“The Trump Environmental Protection Agency and U.S. Army Corps of Engineers violated federal law by taking action with inadequate public notice, insufficient record support and outside their statutory authority,” Attorney General Schneiderman said in a statement Tuesday.

Calling it “clearly illegal,” the attorneys general argue the move threatens decades of progress made, in each of their states, to ensure access to safe water.

According to the 31-page complaint, when the EPA suspended the rule through February 2020 “without consideration of the extensive scientific record that supported it or the environmental and public health consequences of doing so,” the agency was “acting under the guise of merely preserving the status quo.”

When reached for comment Tuesday, a spokesperson for the EPA said only: “It’s worth noting that these lawsuits are over an embattled regulation that’s been put on hold by the courts to prevent it from taking effect. Our delay rule will keep in place that status quo.”

Filed in the Southern District of New York, the attorneys general also contend Pruitt’s change to the definition wholly redefines the “waters of the United States” under the Clean Water Act.

Accordingly, the EPA’s decision now forces all of the plaintiffs to seek a declaration deeming Pruitt’s suspension unlawful and injunctive relief vacating it.

Both the EPA and the U.S. Army Corps of Engineers denied the public a meaningful opportunity to comment on the suspended rule, Schneiderman said.

The comment period was “too short for an important and complex rule” and allowed agencies to act “arbitrarily and capriciously and without a rational basis because they failed to consider whether or how the [suspended rule] would meet the [Clean Water Act’s] objective of restoring and maintaining the integrity of the nation’s waters,” the complaint states.

They allege Pruitt “ignored, countermanded and without reasoned explanation” dismissed key scientific findings which the agency itself reached just a few years earlier when the Clean Water Rule replaced decades-old regulations currently on the books.

Acknowledging Supreme Court decisions in 2001 and 2006 left some ambiguity around the rule, particularly around small streams, wetlands and tributaries, the attorneys general argue vulnerable downstream waters protected under the 2015 rule are now in danger.

“Thousands of miles of streams are at risk of losing Clean Water Act protections, including those that feed sources of drinking water for 117 million Americans, including 56 percent of New Yorkers,” Schneiderman said in a statement Tuesday.

All of the lower 48 states have waters downstream from other states, he notes. New York alone is downstream from 13 states.

The attorneys general move was welcome by Pat Gallagher, director of the Sierra Club’s environmental law program.

“We’re encouraged by attorneys general from across the U.S. standing up for clean water,” Gallagher told Courthouse News. “We will follow their efforts closely.”

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