WASHINGTON (CN) — Legal challenges continue to mount over the White House rolling back protections for America’s waterways, with the latest brought in the nation’s capital on Thursday.
Environmental groups filed the complaint in Washington federal court seeking to vacate the new Navigable Waters Protection Rule that went into effect on Monday, leaving tens of thousands of miles of waterways across the country unprotected.
While the courts often defer to agencies on rulemaking, Sunny Lee, an attorney for the Environmental Integrity Project, said in this case there is no substantial record to show that the move complied with the Clean Water Act.
“Here there doesn't seem to be much to defer to, which is highly unusual,” the attorney said in an interview. “The agencies usually aren’t quite so bold in just asserting their own authority to do whatever they like.”
Trump initiated the rule change by executive order in 2017, eventually cutting out protection for half the country’s wetlands, as well as ephemeral streams that flow only after rain or snowfall.
Republicans have praised the new rule, claiming it preserves state sovereignty and streamlines regulations by providing clear exclusions.
But environmentalists filing suit Thursday argue the EPA is tasked with holding to the Clean Water Act no matter who sits in the Oval Office.
“The agencies’ assertion that a ‘change in administration’ alone can be a ‘perfectly reasonable basis’ for the 2020 final rule – effectively overriding the intent of Congress and insulating the 2020 final rule from judicial review – raises substantial separations of powers concerns,” the complaint states.
Even experts inside the EPA cautioned last year that the new definition of “waters of the U.S.” was inconsistent with the plain text of the Clean Water Act.
They also cautioned that the new rule “contradicted all established science, failed to provide long-term regulatory clarity” and “would likely result in unjustified new risks to human and environmental health,” according to the complaint.
“There really has been kind of this astounding move away from considering any scientific evidence,” Lee said, representing the five environmental groups in the case.
The attorney noted that the Obama-era rule protecting waterways that the current administration has now rolled back was supported by thousands of pages of scientific records.
“There has been none of that here,” Lee said. “I can’t really think of a comparable situation when the experts, including from inside the agency...come out very strongly against this rule and said they just don’t think it has any basis in fact or law really.”
Plowing over its own scientists’ warnings, the White House finalized the repeal of the 2015 rule in April — the day before Earth Day — and replaced it with a regulatory standard that casts wetlands, artificial lakes and ponds and ephemeral streams as “nonjurisdictional” waters.
Fighting court battles across the country, the EPA pointed on Thursday to a ruling from the Northern District of California last week that denied a request from 17 states to block the new rule from going into effect.
Another federal judge in Colorado agreed to put a hold on the rule but only within the Rocky Mountain state.
“EPA and the Army developed the rule to protect the navigable waters and their core tributary systems for the entire country while respecting our statutory authority,” an EPA spokesperson said over email Thursday. “The rule strikes the proper balance between state and federal jurisdiction and is designed to end the confusion that has existed for decades.”
Thursday’s complaint leans on the Supreme Court in April rejecting the Trump administration’s reading of the Clean Water Act — underpinning the new definition of “waters of the U.S.”
“Thus, the 2020 final rule’s definition not only conflicts with the plain text and purpose of the CWA, defeats a central purpose of the CWA, and disregards judicial precedent, established science, and the agencies’ prior factual findings and longstanding policies and practices, but does so without any rational, let alone ‘reasonable,’ explanation,” the complaint states.
The risk to ecological diversity and natural stormwater controls is now in jeopardy, the environmentalists argue, with Tarah Heinzen, senior attorney at Food and Water Watch, calling the recent rule making process sloppy and unjustifiable.
“The rule is yet another example of the Trump administration currying favor with Big Ag and other polluters,” Heinzen said in a statement, “and we expect the courts will correctly determine it to be illegal.”
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