States Ask Court to End New EPA Rule, Claiming It Takes Away State Powers

Attorneys general from 21 jurisdictions said in a complaint filed in the Northern District of California on Tuesday against the Environmental Protection Agency (EPA) and its administrator Andrew Wheeler that changes to the Clean Water Act (CWA) unlawfully took powers away from the states and asked for the rule to be declared unlawful and vacated.

The lawsuit claimed a final EPA rule entitled, Updating Regulations on Water Quality Certification, which was issued on July 13 “upends fifty years of cooperative federalism by arbitrarily re-writing EPA’s existing water quality certification regulations to unlawfully curtail state authority under the Clean Water Act.”

The plaintiffs include California, Washington, New York, Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Wisconsin, the District of Columbia, and the California State Water Resources Control Board.

“The rule will impair states’ ability to fully and efficiently review project proposals for water quality impacts and make it more difficult for states to fulfill their fundamental obligation to protect their waters and wetlands. The multistate coalition challenging the rule represents a substantial portion of the United States, including the entirety of the Pacific Coast from Mexico to Canada, large portions of the Atlantic Coast, the Great Lakes and Lake Champlain, the Chesapeake Bay, and the majority of the Columbia River,” said a California press release discussing the legal action.

The states alleged that “preservation of state authority” is present throughout the CWA, which has historically allowed states to take additional steps to preserve their own waters as long as the restrictions are no less protective than federal standards. States are also given authority to review impacts to water for projects that require a federal license or permit and can prohibit the federal government from granting a license.

The states claimed this was the case until 2019, when an Executive Order asked the EPA to issue new regulations and issued a rule which allegedly “unlawfully usurps state authority to protect the quality of waters within their borders.”

State Water Resources Control Board Chair E. Joaquin Esquivel said in a press release, “The EPA regulations break faith with the underlying balance of state and federal power in protecting the state’s waters from all types of pollution. Federal actions that allow discharges affecting our states waters have profound and lasting impact on California’s water resources. This lawsuit is necessary to ensure that the Clean Water Act’s protections can be fully realized.”

The attorneys general argue that the rule’s infringement on state authority goes against Supreme Court precedent, the EPA’s own guidance, and the legislative history of the Clean Water Act.