Trump EPA Undercuts State and Tribal Authority Under Clean Water Act
EPA’s proposal creates confusion for state and tribal nations to protect water quality
Contacts
Alexandria Trimble, atrimble@earthjustice.org
Today, the U.S. Environmental Protection Agency (EPA) proposed a rule interpreting Section 401 of the Clean Water Act that undercuts and states’ authority to protect their water quality. In response, Moneen Nasmith, Director of National Climate, Fossil Fuel Infrastructure at Earthjustice, released the statement below:
“From what we’ve seen so far, this effort by EPA is solving for a problem that doesn’t exist. States and tribes exercise the authority given to them by Congress in the Clean Water Act to review and reject projects that pose unacceptable threats to their waterways and wetlands. States and tribes that take that responsibility seriously are not abusing their authority, they are following the law.”
Background
To protect water quality, Section 401 of the Clean Water Act creates a state-tribal-federal partnership, giving individual states and some tribes the ability to review the impacts of federally licensed projects, like oil and gas pipelines, on waterways and wetlands within their borders.
Under the first Trump administration, EPA finalized a rule that significantly altered past interpretations of Section 401 and attempted to substantially limit states’ and tribes’ authority to review and potentially 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 heard the case — a decision made without explanation and over the objection of four justices. The 9th Circuit later sided with the Supreme Court, overturning the district court’s decision to vacate the Trump rollback on procedural grounds and remanding back to the district court for further proceedings, which were stayed, pending EPA’s issuance of the final rule.
In 2023, the Biden administration finalized a rule that corrected the unlawful Trump era rollback and confirmed the authority Congress intended states and Tribes to have when considering projects that could harm their water quality. The back-and-forth CWA 401 rules will create regulatory chaos for states and tribes trying to protect their water and communities.
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