Monday, September 25, 2023
Courthouse News Service
Monday, September 25, 2023 | Back issues
Courthouse News Service Courthouse News Service

States and tribes urge judge to abolish Trump water rule

Opponents say leaving the Trump-era rule in place will prevent state and tribal governments from imposing conditions on thousands of water-polluting projects over the next year and half or longer.

SAN FRANCISCO (CN) — A plan to leave a contested Trump-era rule on the books for more than a year while the Biden administration reviews it will make it easier for industrial plants to pollute waterways and harm the environment, opponents of the rule argued in court Thursday.  

In July 2020, the Trump administration finalized a rule that limits state and tribal governments’ power to review projects under the Clean Water Act.

The “Clean Water Act 401 Certification Rule” narrows what issues state and tribal governments may 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. State or tribal approval is a prerequisite for obtaining a federal permit under the Clean Water Act of 1972.

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 industrial projects, including natural gas pipelines, hydroelectric plants, wastewater treatment facilities and developments near sensitive wetlands.

Lawsuits were filed against the rule by 18 states, the District of Columbia, tribal governments and conservation groups. Those suits were later consolidated into one case overseen by Senior U.S. District Judge William Alsup.

During a telephonic hearing Thursday, the coalition urged Judge Alsup to deny the U.S. Environmental Protection Agency’s request to keep the contested rule in place while it spends the next 18 months or longer reviewing it. The EPA expects a final rule to be issued in the spring of 2023.

“The harms that will result from this rule and that EPA has acknowledged are extreme,” said Kelly Wood, assistant attorney general for the state of Washington. “They’re very real. They’re on the ground. This prevents the states and the tribes from applying critical environmental protection rules.”

Under the new regulatory framework, the EPA will no longer let states and tribes consider a project’s impact on air emissions or road traffic congestion. The scope of review will be limited to water quality alone.

The rule, which took effect in September 2020, also forbids state and tribal government from imposing conditions on permit applicants, such as requiring them to build hiking or biking trails, allow fishing access or pay extra money for improvements not related to water quality.

Additionally, the rule requires states to take final action on water quality certification requests within one year. Only the federal government can allow extensions. States and tribes must also provide more information explaining why conditions imposed on projects are necessary to ensure compliance with water quality standards.

The rule empowers the EPA to deem a certification “waived” if it finds a state or tribal government’s certification denial did not comply with the rule.

Tribal governments say keeping the rule on the books will limit their ability to protect culturally important resources and endangered species.

The Pyramid Lake Paiute Tribe in Nevada claims the rule is preventing it from applying critical environmental protections to two pending projects — a proposed pit mine that will discharge pollution into the Truckee River, which flows into Pyramid Lake, and a sediment removal project for a Truckee River island near a federal dam that the tribe says could contaminate the lake with mercury and additional sediment.

The tribal governments’ attorney, Michael Youhana of Earthjustice, reminded Alsup that dozens of tribes objected to the rule before it was put in place.

“That suggests the harm and disruption suffered by the Pyramid Lake Paiute Tribe are not particular to the tribe but are likely to be multiplied over across the nation,” Youhana said. “It’s for this reason we are asking your honor to remand the matter and proceed to expedited briefing or vacate the rule with remand.”

Three industry groups and eight states that support cutting water-permit regulations intervened in the case to defend the Trump-era rule. The intervening defendants include the states of Arkansas, Louisiana, Mississippi, Missouri, Texas, West Virginia and Wyoming. The American Petroleum Institute, Interstate Natural Gas Association of America and National Hydropower Association also entered the case to defend the contested regulation.

On Thursday, National Hydropower Association attorney Misha Tseytlin urged Alsup to reject the coalition’s request to invalidate the Trump-era rule as “procedurally improper.”

At the very least, Tseytlin said the intervening defendants should be allowed to file a written brief on why the rule is not as legally flawed as its opponents claim and why abolishing the rule more than a year after it took effect would be disruptive for multiple industries.

Alsup gave the intervening defendants until 5 p.m. Monday to file a brief on why the rule should be kept in place, and he ended the hearing without rendering a decision.

States suing to nullify 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.

Follow @NicholasIovino
Categories / Environment, Government, Law

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.