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June 1, 2020
Contact: Tom Lalley

Trump Administration Tramples on States’ Rights to Protect Water Quality Within Their Borders

State AGs decry EPA’s assault on the cooperative federalism model established by Congress in the Clean Water Act almost 50 years ago.

Washington, D.C. —   State attorneys general denounced a final rule released today by the Environmental Protection Agency (EPA) that unlawfully restricts states’ rights under Section 401 of the Clean Water Act to protect the quality of waters within their borders. The new rule dramatically narrows the scope of states’ reviews under Section 401, including for major infrastructure projects like pipelines and port terminals, and gives federal agencies veto power over state decisions. The EPA’s rule was developed in response to an April 2019 executive order that purported to promote the development of new fossil fuel energy infrastructure.
The Clean Water Act provides states with broad authority to adopt requirements and restrictions to protect state waters, so long as a state does not adopt standards that are less protective than federal standards. Section 401 of the Clean Water Act requires that federal agencies obtain certification from state(s) that such projects comply with state water quality laws as a precondition for federal approval of proposed projects.
"Why the Trump Administration risks our public health and environment by curbing our ability to protect clean water is a real head-scratcher, particularly as we confront a harrowing pandemic,” said California Attorney General Xavier Becerra. "The Administration's move today is just the latest assault on the Clean Water Act and our state's natural resources. We won't stand idly by as they rip away our authority under the law to preserve water quality.”
“The Trump administration is, once again, flouting the rule of law, this time by denying states their legal right to determine whether major projects violate state water quality standards. The rule undercuts the ability of states to protect their communities from water pollution associated with pipelines, mines and other infrastructure projects, turning the Clean Water Act’s cooperative federalism structure into a federal cram-down that casts aside state interests,” said David J. Hayes, Executive Director of the State Energy & Environmental Impact Center.
In comments submitted to the EPA in October 2019, state attorneys general stressed that “every provision” of the agency’s proposal “appears designed to curtail state authority under section 401” even though the plain language of the section, as interpreted by the Supreme Court, authorizes states to ensure that federally approved projects comply with state water quality standards. 

In testimony before the Senate Committee on Environment and Public Works in November 2019, a representative of Washington Attorney General Bob Ferguson warned that the EPA’s proposal “crosses the level line in several ways” and noted that “just as EPA cannot ignore the laws written by Congress, so too does EPA lack the authority to reverse Supreme Court decisions interpreting those laws.” The testimony also stressed that the proposed changes “are unfounded and unnecessary; they run counter to congressional intent and the concept of cooperative federalism; and they carry grave risks to clean water for families in every state.”
States have successfully implemented section 401 for the past 50 years, demonstrating that it is an effective and important tool to ensure that federally permitted activities do not harm states’ water resources.  Washington State has issued thousands of 401 certifications over the past half century — including hundreds with conditions — and has denied only about 30. Citing water quality concerns, the New York Department of Environmental Conservation last month denied Section 401 certification for a major natural gas pipeline that would have traversed the New York City area.



About the State Energy & Environmental Impact Center
The State Energy & Environmental Impact Center (State Impact Center) is a non-partisan Center at the NYU School of Law that is dedicated to helping state attorneys general fight against regulatory rollbacks and advocate for clean energy, climate change, and environmental values and protections. For more information, visit our website