SAN FRANCISCO (CN) — A federal judge on Thursday refused to leave a contested Trump-era water pollution rule in place while the Biden administration reviews it for the next 18 months, finding that letting it stay in effect could cause long-lasting environmental harm.
"The court’s decision to invalidate the Trump administration's attempt to rewrite the Clean Water Act is a major win for supporters of state and tribal sovereignty and environmental protection,” said Earthjustice attorney Michael Youhana in an emailed statement Friday.
Youhana represents conservation groups and Native American tribes who, along with 20 states and the District of Columbia, sued to block the Trump-era rule in a series of lawsuits, the first of which was filed in July 2020.
The “Clean Water Act 401 Certification Rule” 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 affected the permitting and relicensing process for thousands of industrial projects, including natural gas pipelines, hydroelectric plants, wastewater treatment facilities and construction sites near sensitive wetlands.
Under the rule, which took effect in September 2020, states could no longer consider a project’s impact on air emissions and road traffic congestion. The scope of review would be limited to water quality alone. It also forbid 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 U.S. Environmental Protection Agency because it plans to replace the Trump-era regulation with a new rule by the spring of 2023.
A coalition of states, tribal governments and conservation groups opposed that request, arguing that keeping the rule in place for another 18 months would cause “extreme” harm. Lawyers for Washington state noted that the rule will hobble its ability to impose conditions on three pending hydropower dam projects on the Skagit River. Because licenses for those projects will last for 30 to 50 years, the state says harmful environmental impacts could persist for generations. A Washington state environmental official testified that the dams could increase water temperatures and decrease flows in streams, threatening a primary food source for the endangered Southern Resident orca in Puget Sound, of which there are currently only 73, the lowest number in over four decades
Industry groups and seven states that support cutting regulations intervened in the case to defend the Trump-era rule. They argued that vacating the regulation could scuttle important energy projects, impose burdensome costs on project developers and hurt the economy.
In an 18-page ruling issued Thursday night, U.S. District Judge William Alsup concluded the risk of long-term environmental harms is of greater concern than economic hardships for project developers.
“This order finds the disruptive environmental effects should remand occur without vacatur described by plaintiffs outweighs the disruptive economic consequences of vacatur described by intervenor defendants,” Alsup wrote.
The judge also surmised that the Trump-era rule likely violated the law because it abruptly adopted an understanding of the Clean Water Act that contradicted decades of EPA interpretation and Supreme Court precedent established in the 1994 ruling PUD No. 1 of Jefferson County v. Washington Department of Ecology.
The Biden administration EPA’s subsequent decision to abandon that interpretation further suggests that rule rests on legally dubious ground, the judge wrote.
“The agency’s recognition of its inconsistent interpretation of the scope of the certification compels the conclusion that the current rule is unreasonable,” Alsup wrote.
Sangye Ince-Johannsen, a lawyer with the Western Environmental Law Center who represented conservation groups suing over the rule, said his clients feel vindicated by the court’s decision, which will immediately restore state and tribal governments’ power to impose stricter conditions on water-polluting projects.
He said keeping the rule in effect for another 18 months while the Biden administration reviews it could have had devastating impacts on the environment.
“As long as the Trump-era rule remained on the books, that really hamstrung the ability of states and tribes to regulate clean water,” Ince-Johannsen said in a phone interview. “Getting the Trump-era rule off the books as soon as possible is really critical.”
California Attorney General Rob Bonta said in an emailed statement that during one of the state's driest years on record, Californians are keenly aware of the important role water plays in sustaining ecosystems, agriculture and communities.
“We're pleased that the District Court agreed to vacate this unlawful Trump-era rule and restore California’s authority under Section 401 of the Clean Water Act," Bonta said. "State agencies rely on Section 401 to safeguard our precious resources by ensuring that federal projects meet the state's robust water quality requirements.”
An EPA spokesperson said the agency is reviewing the court's decision and considering its next steps but emphasized that the Biden administration is committed to ensuring states and tribes play a role in regulating water pollution.
"EPA’s own review of the 2020 Rule identified substantial concerns with a number of provisions that relate to cooperative federalism principles and CWA section 401’s goal of ensuring that states and Tribes are empowered to protect water resources that are essential to public health, ecosystems, and economic opportunity," the spokesperson said. "The agency has already begun working on a regulatory effort to address those concerns."
States that sued to overturn the Trump-era rule include California, 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.
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.
Attorneys for the National Hydropower Association and the states of Washington, Texas and Arkansas did not immediately return emails requesting comment Friday.
Alsup’s decision comes less than two months after a federal judge in Arizona rejected the Biden administration’s request to keep in place two separate rules that narrowed the definition of protected waters under the Clean Water Act while the EPA reviews them. U.S. District Judge Rosemary Márquez vacated both rules on Aug. 30, finding the regulatory rollbacks involved “fundamental substantive flaws,” including evidence that the EPA ignored established science and disregarded the advise of its own experts.
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