21 Attorneys General Sue Trump Administration Over Water Rule

By Alan McDonnell
Alan McDonnell
Alan McDonnell
July 22, 2020Updated: July 23, 2020

The attorneys general of 20 states and the District of Columbia initiated a lawsuit (pdf) on July 21 against the Trump administration, alleging that new federal rules to streamline Environmental Protection Agency (EPA) permitting processes undermine their ability to halt infrastructure projects they believe could harm their waterways.

The consortium says that new rules issued last week by the EPA change procedures that gave state governments the authority to review or block projects the federal government had permitted and that involved water bodies within their borders.

In April 2019, President Donald Trump issued an executive order, officially titled “Promoting Energy Infrastructure and Economic Growth,” which was designed to streamline the permitting process and reform “outdated” federal legislation.

“EPA is returning the Clean Water Act certification process under Section 401 to its original purpose, which is to review potential impacts that discharges from federally permitted projects may have on water resources, not to indefinitely delay or block critically important infrastructure,” EPA Administrator Andrew Wheeler said in a June statement.

The final rule was “following through on President Trump’s Executive Order to curb abuses of the Clean Water Act that have held our nation’s energy infrastructure projects hostage, and to put in place clear guidelines that finally give these projects a path forward,” Wheeler said.

Sen. John Barrasso (R-Wyo.) said in an August 2019 statement that he supports the rule change.

“The Clean Water Act is being hijacked by a number of coastal states to block energy projects,” he said. “This coastal blockade cannot continue. It threatens America’s energy dominance and unfairly harms energy workers in Wyoming and other states. These coastal states are preventing cleaner American fuels from getting to communities in the North East and around the world. These states can’t be allowed to weaponize the Clean Water Act. I applaud the Trump administration for working with me to develop solutions.”

States’ Resistance

The attorney generals, in the lawsuit, said they believe the rule change weakened states’ abilities to protect their aquatic environments.

“Instead of protecting the environment, this administration is yielding to polluting industries and undermining a key tool states use to protect their water,” Washington state Attorney General Bob Ferguson said in a statement. “We will continue to advocate for a clean and healthy Washington and confront the powerful special interest groups that dictate this administration’s actions.”

“By illegally infringing on states’ rights to protect their own waters, this rule jeopardizes the health, recreation, and livelihoods that clean water sustains for so many New Yorkers,” said New York Attorney General Letitia James. “My office will not allow this assault on our rights, health, and environment to go unchallenged.”

Aging Legislation

According to the EPA, Section 401 of the Clean Water Act gives authority to states and certain tribes to assess the impact of discharges from federally permitted projects that could affect water quality in rivers, lakes, and streams within each state.

“Properly implemented, Section 401 is an important tool that can be used to help protect water quality while allowing federal permitting and licensing processes to proceed in a timely manner,” according to the EPA.

However, the EPA stressed that at the time Trump’s executive order was issued that the EPA’s regulations for the certification of water quality were almost 50 years old, and no longer corresponded to the statutory language of Section 401.

The Associated Press contributed to this report.