NEW YORK – New York Attorney General James today joined a coalition of 21 attorneys general in filing a lawsuit challenging the U.S. Environmental Protection Agency’s (EPA) final rule unlawfully curtailing state authority under Section 401 of the Clean Water Act. For more than three decades, the EPA has consistently acknowledged and respected that Section 401 provides states with broad authority to ensure that federally permitted projects do not harm water quality in their states.  However, as directed by President Trump’s April 2019 executive order, the EPA issued a final rule radically altering its water quality certification regulations to restrict state authority under the Clean Water Act. In the lawsuit, the coalition argues that the final rule violates the Administrative Procedure Act and Clean Water Act and must be vacated.

“This rule is another example of the Trump administration’s relentless attack on our nation’s public health and environmental safeguards,” said Attorney General James. “By illegally infringing on states’ rights to protect their own waters, this rule jeopardizes the health, recreation, and livelihoods that clean water sustains for so many New Yorkers. My office will not allow this assault on our rights, health, and environment to go unchallenged.”

“Since March, the Trump Administration’s failure to lead in a crisis has been on full display with dire consequences for the nation,” said New York State Department of Environmental Conservation (DEC) Commissioner Basil Seggos. “The Trump Administration’s environmental record is no different. At every opportunity, Trump’s anti-science, anti-environment U.S. EPA has worked to weaken critical environmental protections to serve fossil fuel industry interests at the expense of our air and water. New York State is proud to stand with this multistate coalition to fight this unlawful attempt to limit states’ authority to protect our waters under Section 401 of the Clean Water Act. States have the knowledge and the expertise to uphold water quality standards and New York will always fight to protect clean water and public health.”

The Clean Water Act reflects the federal government’s policy to “recognize, preserve, and protect the primary responsibilities and rights of states to prevent, reduce, and eliminate pollution” of waters within our borders. Under Section 401 of the statute, a project requiring federal approval that may result in discharges into the waters of the United States must obtain state certification confirming that the project meets state water quality standards and other appropriate state law requirements. The projects requiring Section 401 certification range from housing and commercial land development to hydropower and pipeline construction. This certification process ensures adequate assessment of the impacts of proposed projects and the imposition of necessary conditions to remedy these impacts.

On July 13, 2020, the EPA issued a final rule arbitrarily rewriting existing water quality certification regulations to limit state authority under the Clean Water Act. The rule will impair states’ ability to fully and efficiently review project proposals for water quality impacts and make it more difficult for states to fulfill their fundamental obligation to protect their waters and wetlands. The multistate coalition challenging the rule represents a substantial portion of the United States, including the entirety of the Pacific Coast from Mexico to Canada, large portions of the Atlantic Coast, the Great Lakes, Lake Champlain, the Chesapeake Bay, and the majority of the Columbia River.

In the lawsuit, the coalition argues that the EPA’s drastic curtailment of state authority under Section 401 is unlawful because it is contrary to:

• The plain language, structure, purpose, and legislative history of the Clean Water Act;
• Binding Supreme Court precedent interpreting Section 401; and
• The EPA’s own guidance on Section 401, which spans decades and multiple administrations.

In 2019, Attorney General James joined multistate coalitions in filing comment letters opposing the EPA’s unlawful guidance and proposed rule seeking to curtail state authority under Section 401 of the Clean Water Act.

In filing the lawsuit, Attorney General James joins the attorneys general of California, Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and the District of Columbia.

This matter is being handled by Assistant Attorney General Brian Lusignan of the Attorney General’s Environmental Protection Bureau, under the supervision of Deputy Bureau Chief Lisa Burianek and Bureau Chief Lemuel M. Srolovic. The Environmental Protection Bureau is part of the Division of Social Justice, led by Chief Deputy Attorney General Meghan Faux, all under the oversight of First Deputy Attorney General Jennifer Levy.