Today, the U.S. Supreme Court reinstated a Trump administration rule that significantly undermines state and tribal authority to protect water quality under Section 401 of the Clean Water Act. The rule is in effect while the U.S. 9th Circuit of Appeals hears the case.
This decision will harm communities by allowing dangerous fossil fuel projects to get approved without full evaluation of the risks they pose.
“The Court’s decision to reinstate the Trump administration rule shows disregard for the integrity of the Clean Water Act and undermines the rights of Tribes and states to review and reject dirty fossil fuel projects that threaten their water,” said Moneen Nasmith, senior attorney at Earthjustice. “The EPA (Environmental Protection Agency) must ensure that its revised rule recognizes the authority of states and Tribes to protect their vital water resources in its ongoing rulemaking under Section 401.”
The lower court and EPA’s own review of the Trump rule have found that it undermines the Clean Water Act’s goal of ensuring that states and Tribes are empowered to protect water resources that are essential to public health, ecosystems, and economic opportunity. EPA has already begun working on a revised rule to address those concerns.
With this decision, the Supreme Court’s conservative supermajority is once again overstepping to advance their deregulatory agenda.
Earthjustice is representing the Suquamish Tribe, Pyramid Lake Paiute Tribe, Orutsararmiut Native Council, Columbia Riverkeeper, and Sierra Club in this case.
Background on Section 401 of the Clean Water Act
The Clean Water Act is one of our nation’s bedrock environmental laws. Congress passed this popular law in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
To protect water quality, Section 401 of the Clean Water Act creates a state-tribal-federal partnership, giving individual states and eligible Tribes the ability to review the impacts of many different types of federally licensed projects on waterways and wetlands within their borders.
States and eligible Tribes have up to one year to issue, condition, deny, or request more information regarding water quality and environmental harm from a proposed project. Some projects have the potential to significantly degrade local and state water quality by, for example, cutting trenches through hundreds of waterways, damming rivers, or destroying acres of wetlands.
States and Tribes review hundreds of 401 certification requests annually, allowing for better protection of water resources for all uses, including drinking water, commercial, tribal, and recreational fishing, swimming, critical wildlife habitat, and outdoor recreation.
Earthjustice filed a lawsuit challenging the Trump administration’s changes to Section 401 on behalf of the Suquamish Tribe, Pyramid Lake Paiute Tribe, Orutsararmiut Native Council, Columbia Riverkeeper, and Sierra Club in September 2020.
In October 2021, a federal judge rejected EPA’s request to keep the Trump era rule in place, in a victory for Earthjustice, our clients, and the states and tribes that use Section 401 to protect water quality. After an appeal to that decision, the 9th Circuit denied the request to reinstate the Trump rule.
Oil and gas industry groups and the states beholden to their interests filed a request to the Supreme Court to put the Trump rule back into effect while the 9th Circuit hears the case, or alternatively to take up the case immediately in March 2022.
The Biden EPA is expected to issue a new draft rule in spring 2022 and a final rule in spring 2023.