EPA Wants Control Over CWA Revision in Case Challenging Trump Admin. Rule Change

According to a motion filed last week, the Environmental Protection Agency and its administrator (collectively, EPA), request remand, without vacatur, of a lawsuit challenging a Trump-era rule promulgated under Section 401 of the Clean Water Act (CWA). Reportedly, the rule diverges dramatically from long-standing policy by removing the ability of states, tribes, and interstate authorities to protect water quality from federally-approved projects.

The motion details the suit’s background, starting with the complaint filed last July by the Delaware Riverkeeper Network, the Delaware Riverkeeper, and Maya Van Rossum. In the Eastern District of Pennsylvania filing, the plaintiffs alleged that the former administration modified the CWA in a manner that violated of the Administrative Procedure Act.

Specifically, the complaint asserted that the defendants failed to follow rulemaking procedure, by, for example, failing to consider and analyze on-the-ground impacts the proposed rule would have on water quality. Further, it claimed that the rule steps on states’ regulatory authority and was motivated by improper political animus, specifically, “President Trump’s desire to mow down regulatory obstacles to fossil fuel extraction, transportation, and export.”

Revision without judicial intervention is legally appropriate, the EPA now argues, because the agency shares the litigants’ concerns and has already announced its intention to reconsider and revise the rule. As here, where an agency has committed to reconsidering a challenged action, the court must remand the rule to the agency to address concerns through the administrative process, the motion contends.

The EPA is represented by the Department of Justice and the plaintiffs by Delaware Riverkeeper Network.

In an identical filing submitted in the Northern District of California, the EPA has requested the same treatment in a similar, consolidated case brought by states and conservation groups. According to both motions, the plaintiffs plan to oppose the EPA’s request for remand without vacatur, and the defendant-intervenors may or may not object.