16 AGs Denounce Trump Administration’s Attempt to Limit State Authority Under the Clean Water Act

Attorneys general show their determination to defend states’ rights in the face of the latest Trump administration attack on cooperative federalism and the rule of law.


May 28, 2019
Contact: Christopher Gray

Washington, D.C. — New York Attorney General Letitia James led a coalition of 16 state attorneys general in submitting a comment letter warning the Trump administration that any change to the Environmental Protection Agency’s (EPA) guidance and regulations under Section 401 of the Clean Water Act undermining state authority would stand in clear violation of the law. The attorneys general made their concerns known in a letter sent to the EPA on Friday prior to the close of the agency’s pre-proposal deadline, which was set in response to President Trump’s April 10 Executive Order directing the EPA to make changes to its current Section 401 guidance.
“We sent a letter to the EPA to highlight our concerns with the Trump [administration’s] consideration of rolling back states' authority under the Clean Water Act,” said Attorney General James. “New York will always defend the right to ensure the people of our state have access to clean water, period.”

President Trump’s Executive Order 13868 is widely understood to be a response to regulatory actions taken by states like Washington and New York, which have used their Section 401 authority to deny permits for fossil fuel infrastructure projects including natural gas pipelines and coal export terminals that would have a negative impact on local water quality. At the time of its signing, the Executive Order faced widespread, bipartisan criticism, including from the Western Governors’ Association, which released a statement noting that restrictions on state authority “would inflict serious harm to the division of state and federal authorities established by Congress.”

In addition to joining the New York-led coalition, Washington Attorney General Bob Ferguson also submitted a separate set of comments objecting to the Trump administration’s proposal in a May 21 letter that was also signed by Governor Jay Inslee. AG Ferguson’s letter raised similar concerns, noting that the Trump administration’s allegations of industry “confusion” under the current EPA guidance are “fabricated.” AG Ferguson also reminded the EPA that “the Clean Water Act gives states a vital role in decisions that could impact the quality of their waters,” and notified the administration that Washington is prepared to “take all steps necessary” to defend its rights under the law.

“The Trump administration’s attempt to attack our state’s right to protect the health and well-being of our residents, without any consultation with states or tribal governments, is wrong,” said Attorney General Ferguson. “It will undermine four decades of state and federal cooperation in environmental stewardship.”
“The administration is looking for retribution because New York, Washington and other states have successfully exercised their rights to object to federally-supported projects that fail to satisfy state standards," said David J. Hayes, Executive Director of the State Energy & Environmental Impact Center at NYU School of Law. "Only Congress can change the law, and it has no inclination to do so. States will not be bullied into giving up permitting rights that courts have upheld, and that states have responsibly implemented, under the cooperative federalism system that has governed administration of our environmental laws for decades.” 

In addition to New York and Washington, the state attorneys general of California, Colorado, Connecticut, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont also joined the coalition opposing the Trump administration’s proposed rollback of state authority under the Clean Water Act.

The State Energy & Environmental Impact Center is a non-partisan Center at the NYU School of Law that is dedicated to working with state attorneys general to protect and advance clean energy, climate change, and environmental values and protections. It was launched in August 2017 with support from Bloomberg Philanthropies. For more information, visit our website.