NDCA Restores States’ Clean Water Act Authority

Last Thursday, Judge William H. Alsup vacated a Trump Administration rule restricting states’ power to enforce the Clean Water Act (CWA) and remanded it to the agency with vacatur. The opinion is the second one in which a federal court sided with the plaintiffs in remanding the case to the Environmental Protection Agency (EPA). In the other suit brought by non-profit environmental advocacy groups, the District of Maryland remanded the case to the agency without vacating the rule several months ago.

The San Francisco, Calif. case entitled In re Clean Water Act Rulemaking, recalls how for nearly fifty years, the CWA’s Section 401 provided states with the broad authority to approve, impose conditions on, or deny certification for federally permitted projects in order to ensure their compliance with state laws. The Trump Administration promulgated a final rule in September 2020 restricting this state authority and changing other aspects of the CWA. Lawsuits soon followed by numerous states, including California, New York, and Washington, tribes, and conservation groups.

In last week’s opinion, the court considered the motion for remand with vacatur, the EPA’s motion for remand without vacatur, as well as arguments by the defendant-intervenors, including American Petroleum Institute, Interstate Natural Gas Association of America, National Hydropower Association, and eight states including Louisiana, Montana, Texas, and West Virginia. They moved to strike the plaintiffs’ motion for remand to the extent it asked for vacatur. 

Judge Alsup decided that under circuit precedent, Allied-Signal, “the seriousness of the order’s deficiencies,” and “the disruptive consequences of an interim change that may itself be changed,” weighed in favor of vacatur. The opinion pointed to the rule’s numerous flaws, including the illegal narrowing of the scope of state certifications, the absence of reasoned agency decisionmaking, and that the rule transgressed the structure and purpose of the CWA. 

The court also found that significant environmental harms were likely to occur in the event of remand without vacatur. The court pointed to the State of Washington’s example concerning three hydropower dams on the Skagit River. Under the Trump-era rule, the Federal Energy Regulatory Commission could obtain uncontestable 30-50 year licenses on the dams that might allow fluctuations in water temperature that would threaten Chinook salmon and up the food chain, an endangered population of orca that live in the Puget Sound.

As a result of the ruling, Judge Alsup explained that there will be a temporary return to the rule previously in force. That rule will remain in effect until Spring 2023, when EPA is to finalize a new certification rule.