Several cases were filed last week against the Environmental Protection Agency (EPA) over the rollback of previously established regulations under the Clean Water Act. Specifically, the groups are challenging the EPA’s redefining of the term “waters of the United States.”
The lawsuits arise from the Trump Administration’s Navigable Waters Protection Rule (NWPR), which went into effect on June 22. and replaced an expanded standard implemented during the Obama Administration, which was itself repealed last year. Earthjustice, a nonprofit public interest environmental law organization, is representing the Puget Soundkeeper Alliance and the Sierra Club, among others, in one case that was filed in the Western District of Washington. In a press release, Earthjustice attorney, Janette Brimmer, stated: “Millions of Americans depend on water now under threat from this administration’s commitment to pro-polluter agendas and cronyism, for drinking, for subsistence, for recreation, and for their livelihoods.” Additionally, Earthjustice released several maps redlining the areas they allege that will be affected and no longer protected from pollution.
The Environmental Integrity Project, with other groups, filed a suit in the District of Columbia against the EPA as well. The plaintiffs are seeking judicial review under the Administrative Procedure Act of the EPA’s “recently promulgated final rule entitled “The Navigable Waters Protection Rule: Definition of ‘Waters of the United States,’” 85 Fed. Reg. 22,250 (Apr. 21, 2020).”
The administration, acting off Executive Order 13778, “entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule,” has focused on the narrow interpretation of the Clean Water Act, which Supreme Court Justice Anton Scalia articulated in a plurality opinion in Rapanos v. United States.
As stated by Scalia, the jurisdiction of the Act encompasses only “relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as streams, oceans, rivers, and lakes.” After Rapanos, the EPA “developed and promulgated the 2015 Clean Water Rule, which was intended to more clearly establish standardized procedures by which the Agencies would implement the significant nexus standard using ‘the text of the statute, Supreme Court decisions, the best available peer-reviewed science, public input, and the Agencies’ technical expertise and experience.’”
The plaintiffs in this case alleged the EPA is not acting in accordance with the law and its actions are arbitrary and capacious. They are seeking the court to declare that the 2020 Final Rule exceeds the EPA’s statutory jurisdiction and vacate its ruling.
