States Ask to Intervene in Favor of EPA’s New Clean Water Act Rule

Eight states, including Louisiana, Montana, Arkansas, Mississippi, Missouri, Texas, West Virginia, and Wyoming, filed a motion to intervene on Friday in a Northern District of California case alleging the United States Environmental Protection Agency (EPA) and its administrator, Andrew Wheeler, took powers that should belong to the states when modifying the Clean Water Act.

The states said they approved of the EPA’s final rule, Clean Water Act Section 401 Certification Rule, 85 Fed. Reg. 42210, and hope to intervene in its defense. They allegedly provided comments in support of the rule before it was published in July. The motion cited that the Governor of Wyoming testified in favor of the rule before a Senate Committee.

Some of the intervening states had allegedly asked the EPA to revise its regulations, resulting in the changes in the Clean Water Act, because states, including at least one of the plaintiffs, were “abusing their Section 401 Certification authority” by delaying Clean Water Act projects initiated by other states. Specifically, landlocked states were reportedly being stopped from exporting natural resources.

The initial complaint was filed in July by 21 jurisdictions, including 20 states and the District of Columbia. The states asked the court to rule the Clean Water Act unlawful, and that it is impairing states’ abilities to protect their own waters. According to Friday’s motion, none of the jurisdictions took a position on the motion when notified by counsel for Louisiana.

The states claim their intervention is timely and that they have “significant protectable interests” in the case, which could be impeded by the case if they are not involved. They also claimed that the 21 jurisdictions, who are already plaintiffs in the case, do not “adequately represent” the interests of the intervenors, nor does the EPA.

The motion stated that the “‘property’ that is the subject of this action — particularly given Plaintiffs’ request for nationwide relief — includes the sovereign lands and waters within the State Intervenors’ borders, the scope of the State Intervenors’ power and duty to regulate use of that property, and the State Intervenors’ sovereign right to develop their natural resources without interference from other states.”

The additional states asked to intervene in the case without oral argument, but noted that there is a hearing scheduled on October 15, and that they would like to move for relief at that date or “as soon thereafter as the Court may order.”

The intervening states are represented by Benbrook Law Group along with their respective attorneys general.