Today, the Biden administration’s Environmental Protection Agency (EPA) announced its proposed rule for Clean Water Act Section 401. In response, Moneen Nasmith, senior attorney at Earthjustice, released the statement below:
“We are very pleased to see that EPA’s proposed rule restores the primary role Congress intended for Tribes and states to have in reviewing and rejecting projects that would threaten their water quality. EPA’s proposal is a positive and welcome step towards correcting the Trump administration’s unlawful rollback of state and Tribal authority and the chaos imposed by the Supreme Court’s decision to reinstate the illegal rule that coopts the Clean Water Act to serve the interests of the fossil fuel industry.”
To protect water quality, Section 401 of the Clean Water Act creates a state-tribal-federal partnership, giving individual states and Tribes the ability to review the impacts of federally licensed projects, like oil pipelines, on waterways, and wetlands within their borders.
In 2020 under the Trump administration, EPA finalized a rule that significantly altered past interpretations of Section 401 by substantially limiting the authority states and tribes to reject projects that would harm their waterways and health.
Earthjustice represented three tribes and two environmental organizations in a lawsuit against the Trump rollback, which made its way to the Supreme Court. In April 2022, the Supreme Court reinstated the Trump rule while the U.S. 9th Circuit of Appeals hears the case — a decision made without explanation and over the objection of four justices.