July 21, 2020
Contact: Tom Lalley

Twenty-One State AGs Challenge EPA Rule Curtailing States’ Rights Under the Clean Water Act

New rule guts states' right to approve federally-permitted projects that affect water quality under Section 401 of the Act.

Washington, D.C. — A coalition of 21 state attorneys general led by California Attorney General Xavier BecerraWashington Attorney General Bob Ferguson and New York Attorney General Letitia James filed a lawsuit today challenging a final rule issued by the Environmental Protection Agency (EPA) that unlawfully usurps states’ rights to protect the quality of waters within their borders, as authorized by Section 401 of the Clean Water Act. For decades, these provisions have required that federally-permitted projects that involve discharges into waters of the United States — such as pipelines, dams and industrial plants — obtain certification that the project meets state water quality standards, and prevents the federal government from using its licensing and permitting authority to approve projects that violate state water quality laws. The rule was developed in response to President Trump’s Executive Order 13,868, which purports to promote the development of new fossil fuel energy infrastructure.

In their suit, the AGs said that the new rule would impose “onerous federal control over virtually every step of the administrative process,” including new, "unjustified, and unreasonable substantive limits, time constraints, and procedural restrictions on States’ review of and decisions on section 401 certification applications.” The new rule also unlawfully limits state certification authority over point source discharges from proposed projects into navigable waters which, the AGs said, prohibits states “from considering how a federally approved project, as a whole, will impact state water quality.” The AGs called the change “a radical departure from past EPA policy and practice, unlawful, and abandons the decades-long successful cooperative federalism approach Congress intended in the [Clean Water Act].”

“Once again, the Trump Administration is attempting to undermine the Clean Water Act — this time by limiting longstanding state authority to protect our waters from degradation tied to federally-approved projects,” said California Attorney General Xavier Becerra. “President Trump fails to understand that he doesn’t get to rewrite the rules just because he doesn’t like them. We’re going to court to make sure the rules are followed. It’s a lesson most of us learned in grade school.”

“Instead of protecting the environment, this administration is yielding to polluting industries and undermining a key tool states use to protect their water,” said Washington Attorney General Bob Ferguson. “We will continue to advocate for a clean and healthy Washington and confront the powerful special interest groups that dictate this administration’s actions.”

“This rule is another example of the Trump administration’s relentless attack on our nation’s public health and environmental safeguards,” said New York Attorney General Letitia James. “By illegally infringing on states’ rights to protect their own waters, this rule jeopardizes the health, recreation, and livelihoods that clean water sustains for so many New Yorkers. My office will not allow this assault on our rights, health, and environment to go unchallenged.”

“The health and safety of New Mexican families, particularly our most vulnerable populations, is being put at risk by this administration's pollution of our environment,” said New Mexico Attorney General Hector Balderas. “We will continue to fight to protect our environment and the health and safety of our families.”

“Once again, President Trump is rolling back critical environmental protections to line the pockets of his friends in polluting industries,” said Massachusetts Attorney General Maura Healey. “We are suing because this rule is an illegal assault on the rights of states to protect our water quality and public health.”

“This unlawful rule strips states of our fundamental right to protect our own water. Connecticut has a duty to review and regulate development that impacts our waters and wetlands and the health of our natural habitats,” said Connecticut Attorney General William Tong. "We have fought this proposal every step of the way. We will not allow Trump’s EPA to intrude upon our authority to protect public health and the environment.”

“The EPA is supposed to be leading with science and implementing protections to safeguard the air we breathe and the water we drink,” said North Carolina Attorney General Josh Stein. “Instead, the agency is consistently ignoring the data and taking steps that will negatively affect our health and set back our fight against climate change. In the midst of an unprecedented public health crisis, we cannot forget that we are also in the midst of a climate crisis. If the EPA won’t act to protect our environment, I will do everything in my power as Attorney General to protect North Carolina’s natural resources.”

“The federal government is taking unprecedented steps to stop states from fulfilling our important duties to prevent the pollution of our waters,” said New Jersey Attorney General Gurbir Grewal. “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.”

“Congress rightly granted states the authority to protect the health of their waterways,” said Maryland Attorney General Brian Frosh. “The Trump administration has already undermined federal clean water standards.  Now, it is threatening to obstruct the states when they seek to protect their lakes, coastlines, wildlife habitats and, in Maryland, the Chesapeake Bay. Donald Trump may favor polluters over people, but we do not.  We will fight to protect our natural resources.”

“We need to be doing more to protect clean water, not less,” said Wisconsin Attorney General Josh Kaul. “This rule is a step in the wrong direction.”

The attorneys general of Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, D.C. and Wisconsin joined AG Becerra, AG Ferguson and AG James in filing the lawsuit.


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