EPA’s action would mark return to inconsistent 1980s-era patchwork of state, federal rules
SEATTLE — Attorney General Bob Ferguson today filed a lawsuit to block the Environmental Protection Agency’s attempt to repeal a 2015 rule that clearly defines what waters qualify for federal Clean Water Act protection and replace that rule with a rule established in 1986. The EPA’s repeal will significantly reduce the number of water bodies around the United States that are protected under the Clean Water Act.
The 2015 Clean Water Rule’s definition of “waters of the United States” was adopted after an extended and robust rulemaking process. Before the rule, a patchwork of state and federal rules regulated runoff from some upstream bodies. This made pollution difficult to control.
The rule particularly helps states like Washington that have waterways impacted by upstream sources in neighboring states.
“The Trump Administration continues to assault sound, scientifically supported environmental policy,” Ferguson said. “Clean water is essential to our environment and our economy in the Pacific Northwest. From salmon to orcas, fishermen to farmers, clean water is the basis for a healthy Washington. We plan to stop this administration’s unlawful attempt to upend years of extensive scientific study and public input simply because it doesn’t like the result.”
The suit, filed with 14 other attorneys general and the City of New York in the U.S. District Court for the Southern District of New York, accuses the EPA of violating the Administrative Procedure Act and the Clean Water Act with its new rule by failing to provide a reasoned explanation for its decision, and failing to provide a meaningful opportunity for public input.
After its adoption, the 2015 rule was challenged in federal court by then-Oklahoma Attorney General Scott Pruitt and several other states. Ferguson and several other state Attorneys General intervened in the suit to defend the rule.
Pruitt went on to become EPA administrator under President Donald Trump, where he proposed the suspension and repeal of the 2015 rule.
In 2018, Ferguson and 10 other attorneys general challenged the EPA’s suspension of the 2015 rule. Judges in other, similar cases blocked the administration from suspending the rule before a ruling could be issued in Ferguson’s case.
Pruitt has since left the administration, but the EPA’s efforts to repeal the rule have continued.
In October, the EPA and the U.S. Army Corps of Engineers published a rule repealing the 2015 Clean Water Rule, and replacing it with the rule promulgated by the Army Corps of Engineers in 1986. The rule is effective on Dec. 23.
Ferguson is asking the court to vacate the repeal and replacement rule.
Senior Counsel Ronald Lavigne is leading the case for Washington state.
Ferguson has filed 54 lawsuits against the Trump Administration and has not lost a case. Ferguson has 24 legal victories against the Trump Administration. Fourteen of those cases are finished and cannot be appealed. The Trump Administration has or may appeal the other 10, which include lawsuits involving Dreamers and rules restricting contraception access. No court to rule on the merits of the Attorney General’s arguments in a lawsuit against the Trump Administration has ruled against the office.
The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.
Brionna Aho, Communications Director, (360) 753-2727; Brionna.firstname.lastname@example.org