NEW JERSEY – Attorney General Gurbir Grewal Tuesday joined a coalition of Attorneys General in suing to block a U.S. Environmental Protection Agency (EPA) final rule that unlawfully restricts the authority of states to protect their waters from pollution.
For more than three decades, the EPA has consistently acknowledged that Section 401 of the federal Clean Water Act provides states with the authority to exercise oversight of federally permitted projects such as pipelines, industrial plants and hydroelectric dams, among others. Under that recognized authority, states could review, impose conditions on, or deny certification for such federally approved projects.
However, as directed by President Trump in an Executive Order issued in April 2019, EPA has now issued a final rule radically altering its water quality certification regulations to restrict states’ authority under the Clean Water Act.
Filed Tuesday in U.S. District Court in California, the lawsuit asserts that the new rule must be vacated because it unlawfully limits the ability of the states to protect precious wetlands and waterways within their own borders, violates the Clean Water Act and runs afoul of the federal Administrative Procedure Act (APA).
“The federal government is taking unprecedented steps to stop states from fulfilling our important duties to prevent the pollution of our waters,” Grewal said. “Under the Clean Water Act, as interpreted by bipartisan administrations for decades, states have always played a key role in standing up for our waters and our wetlands. This EPA is trying to strip away our ability to do so, which is why we’re taking them to court. The fight to protect our environment continues.”
“I am proud of the work that New Jersey has done to protect its environment and public health and I am proud to support the lawsuit with Attorney General Grewal against this final rule,” New Jersey Department of Environmental Protection Commissioner Catherine R McCabe said. “Together, we can assert every states’ right to protect their waters, their people and their future.”
Through the plain language of the Clean Water Act, Congress established its intent to “recognize, preserve, and protect the primary responsibilities and rights of states to prevent, reduce, and eliminate pollution” of waters within their borders. Under Section 401 of the statute, a project requiring federal approval that may result in discharges into the waters of the United States must obtain state certification confirming that the project meets state water quality standards and other appropriate requirements of state law.
The projects requiring Section 401 certification range from housing and commercial land development to hydropower and pipeline construction. The certification process ensures an adequate assessment of the impacts of proposed projects, as well as the imposition of conditions required to prevent or remedy such impacts.
On July 13, 2020, the EPA issued a final rule arbitrarily re-writing existing water quality certification regulations to limit state authority under the Clean Water Act, including by limiting the kinds of conditions the states can place on projects. Among other things, the rules prohibit states from placing any new requirements relating to nonpoint sources of pollution, such as construction debris and sedimentation, which could nonetheless impact water quality. Today’s lawsuit alleges that the rule will impair states’ ability to fully and efficiently review project proposals for water quality impacts, while at the same time making it more difficult for states to fulfill their fundamental duty to protect their waters.
In the lawsuit, the coalition argues that the EPA’s drastic curtailment of state authority under Section 401 is unlawful because it is contrary to:
- The plain language, structure, purpose, and history of the Clean Water Act;
- Binding Supreme Court precedent interpreting Section 401; and
- The EPA’s prior guidance, which spans decades and multiple administrations.
In 2019, Grewal joined multi-state coalitions in filing comment letters opposing the EPA’s prior unlawful guidance and proposed rule eroding state authority under the Clean Water Act.
Attorney General Grewal joins the Attorneys General of California, New York, Washington, Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Wisconsin and the District of Columbia in filing the lawsuit.