WASHINGTON, D.C. –– Attorney General Karl A. Racine and 10 other state attorneys general have filed suit against the Trump Administration for suspending the 2015 Clean Water Rule, a federal regulation designed to ensure that lakes, rivers, streams, and wetlands are properly protected under the federal Clean Water Act. The attorneys general charge that, in replacing the Clean Water Rule with a “Suspension Rule,” the Trump Environmental Protection Agency (EPA) and United States Army Corps of Engineers (Army Corps) violated federal law and took action “with inadequate public notice, insufficient record support, and outside their statutory authority.”
The lawsuit is led by New York Attorney General Eric Schneiderman and joined by the attorneys general of California, Connecticut, the District, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, and Washington state. It was filed in U.S. District Court for the Southern District of New York.
“This abrupt and unlawful suspension of the Clean Water Rule is a step backward that endangers our health and safety,” said Attorney General Racine. “Our rivers are a defining feature of our city. We have spent decades working to restore the Anacostia River, and we rely on the Potomac River for our drinking water. We won’t stand by while the Trump administration seeks to strip us of protections that keep our water safe to drink and our rivers safe for recreation.”
“Clean water is fundamental to New Yorkers’ health, environment, and economy,” Attorney General Schneiderman said. “The Trump Administration’s suspension of the Clean Water Rule is clearly illegal, threatening New York’s decades-long efforts to ensure our residents have access to safe, healthy water. We will fight back against this reckless rollback and the Trump administration’s continued assault on our nation’s core public health and environmental protections.”
Background on the Suspension of the Clean Water Rule
In 2015, the EPA and the Army Corps adopted the Clean Water Rule to clarify what types of waters are considered “waters of the United States” – and thereby are afforded protection under the Clean Water Act. This clarification was necessary both because of ambiguity in regulations dating back to 1980, and because Supreme Court decisions in 2001 and 2006 endangered protections for 60 percent of our nation’s streams and millions of acres of wetlands nationwide.
As the lawsuit contends, the 2015 Clean Water Rule “rests on a massive factual record.” It was developed through an extensive multi-year public outreach process that elicited more than one million public comments, and was based on more than 1,200 peer-reviewed scientific studies demonstrating how many waters are connected by networks of tributaries, intermittent streams, and wetlands. The agencies also relied on EPA’s Science Advisory Board’s independent review of the rule’s scientific underpinnings. The EPA also estimated that implementing the 2015 rule would result in indirect, incremental annual net benefits of between $339 million to $572 million across multiple Clean Water Act programs.
The Suspension Rule, which the EPA and the Army Corps published yesterday, suspends the Clean Water Rule for two years and replaces it with the pre-2015 regulations. It was these outdated regulations that had led to many years of confusing and inconsistent interpretations of “waters of the United States” by agencies and federal courts, and resulted in inadequate water quality protections.
In their suit challenging the Suspension Rule, the coalition of attorneys general charges that the EPA and Army Corps:
- Do not have authority under the Clean Water Act to suspend the Clean Water Rule after its effective date has passed;
- Failed to provide a meaningful opportunity for public comment on the substance of the suspension rule, and specifically instructed the public not to comment substantively on the content, basis, or impact of the reinstated four-decade-old regulations; and
- Disregarded the voluminous scientific basis and factual findings supporting the Clean Water Rule, including that the 1980 regulations do not specifically address the interconnectivity of waters and thereby leave many floodplains, wetlands, and tributaries without certain protection under the Clean Water Act.
In December 2017, Attorney General Racine was among a group of attorneys general who submitted comments to the EPA and Army Corps pointing out the illegality of, and the harms threatened by, the then-proposed Suspension Rule. Click here to read those comments. Previously, in September 2017, a coalition of attorneys general in also made comments challenging the legality of the Trump Administration’s proposal to outright repeal the Clean Water Rule. Click here to read these comments.