SAN FRANCISCO (CN) — Industry groups fighting to revive a Trump-era rule that limited regulation of water-polluting projects suffered a setback in court Tuesday when a federal judge rejected their request to reinstate the rule pending appeal.
Oil, gas and hydropower industry associations had asked Senior U.S. District Judge William Alsup to stay his Oct. 22 decision, which voided the Trump-era rule while the Biden administration spends the next 16 months or so reviewing and potentially replacing it.
The industry groups argued vacating the rule could scuttle important energy projects, impose burdensome costs on project developers and hurt the economy. They also argued that by voiding the rule, the court trampled on their rights to actively participate in rulemaking before different regulations are imposed on them.
In a 14-page order Tuesday, Judge Alsup dismissed that argument, finding the groups can still fully participate in the U.S. Environmental Protection Agency’s rulemaking process, which is currently underway.
“EPA announced in June 2021, months before the vacatur order, that the agency would revise the 2020 rule,” Alsup wrote. “Neither the vacatur order, nor this litigation generally, has proscribed intervenors’ full participation in that rulemaking process.”
Alsup also found public-interest factors weigh in favor of keeping the Trump-era rule off the books and reinstating Clean Water Act regulations in effect from 1972 to 2020.
“The public interest as to the Clean Water Act, at base, lies in preserving nature and avoiding irreparable harm to the environment,” Alsup wrote.
The industry groups and seven states that support cutting regulations filed an appeal with the Ninth Circuit last month, asking it to overturn Judge Alsup’s decision. An opening brief for the appeal is due in February, but after Alsup’s decision, the industry groups are expected to ask the Ninth Circuit to overrule the stay denial and reinstate the Trump-era rule.
Representatives for a coalition of states, tribal governments and conservation groups that oppose the Trump administration's regulatory rollback said they will continue to fight in the Ninth Circuit.
“We successfully fought this unlawful Trump-era rule in the district court, and will continue to defend California’s authority under Section 401 of the Clean Water Act in the Ninth Circuit,” a spokesperson for California Attorney General Rob Bonta said by email Tuesday.
California is one of 20 states that sued to block the Trump administration rule.
“The court reaffirmed today that leaving the Trump water rule in place would harm communities and water quality,” Earthjustice attorney Michael Youhana said. “We will continue to stand up for people’s right to clean water and oppose efforts by polluters to erode clean water protections.”
Youhana represents conservation groups and Native American tribes who also sued to block the Trump-era rule.
The “Clean Water Act 401 Certification Rule,” which took effect in September 2020, narrowed what issues state and tribal governments can consider when determining if a project, such as one that involves discharging pollution into a river or stream, will comply with state water quality standards.
The rule — one the first major overhauls of the water quality certification process in nearly 50 years — affects the permitting and relicensing process for thousands of projects, including natural gas pipelines, hydroelectric plants, wastewater treatment facilities and construction near sensitive wetlands.
Under the rule, states could no longer consider a project’s impact on air emissions and road traffic congestion, with the scope of review limited to water quality alone. It also forbade states and tribes from imposing recreation-related conditions on projects and required they provide more details on why specific permit conditions are necessary.
In July, the Biden administration asked the court to remand the dispute to the EPA because it planned to replace the Trump-era rule with a new one by the spring of 2023. It also requested that the Trump-era rule be kept in place during that process, but Alsup denied that request in October and voided the Trump water rule.
Though the Biden administration previously fought to keep the Trump-era rule in place, it opposed the industry groups' motion to stay Alsup’s order that voided the rule. The EPA maintains that the industry groups can’t appeal the Oct. 22 ruling because for them, it’s not a final appealable decision.
“In this case, the defendant-intervenors will have an opportunity to provide their comments on remand during EPA’s rulemaking and will have the opportunity to challenge any final rule EPA may ultimately promulgate,” the EPA wrote in an 11-page opposition brief.
The EPA and representatives for industry groups did not immediately return emails requesting comment Tuesday.
Defendants who intervened in the case to defend the Trump-era rule include the states of Arkansas, Louisiana, Mississippi, Missouri, Texas, West Virginia and Wyoming, and industry groups including the American Petroleum Institute, Interstate Natural Gas Association of America and National Hydropower Association.
States joining California in suing to overturn the Trump-era rule include Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, Wisconsin and the District of Columbia.
Other plaintiffs in the case include the Suquamish Tribe, Pyramid Lake Pauite Tribe, Orutsararmiut Native Council, Columbia Riverkeeper, Sierra Club, American Rivers, American Whitewater, California Trout and Idaho Rivers United.
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