PHILADELPHIA – Litigation between the Delaware Riverkeeper Network and the Environmental Protection Agency over the implementation of a specific tenet of the Clean Water Act has other states and industry trade organizations intervening, and the EPA filing to dismiss the case.
On June 1, the EPA issued a Final Rule which largely changed its regulations in implementing Section 401 of the Clean Water Act.
Section 401 of the Clean Water Act gives each state and Native American tribe an important but limited say in the licensing of federal projects that could affect water quality.
Per the section in question, federal agencies cannot license activities that may result in a discharge into waters of the United States, until the state whose waters would be affected by the discharge certifies that the activity will comply with applicable water-quality requirements or waives the Section 401 requirement, either affirmatively or through inaction.
In order to preserve the CWA’s federal-state balance, that authority is also limited – Section 401 only authorizes states to address water quality, and only within reasonable time limits that can never exceed one year.
The Final Rule is EPA’s first comprehensive effort to promulgate federal rules governing the implementation of the Clean Water Act’s Section 401 and was published in the Federal Register on July 13.
Delaware Riverkeeper Network and “The Delaware Riverkeeper” Maya van Rossum filed suit in the U.S. District Court for the Eastern District of Pennsylvania on the following day, July 14, versus the EPA.
The plaintiffs challenged the Final Rule as “arbitrary and capricious”, in violation of the Administrative Procedure Act because the defendants failed to analyze potential water quality impacts and failed to make a rational connection between the facts and the decision and ignored the text of the Clean Water Act.
The plaintiffs also claim that the Final Rule violates the APA because it is in excess of statutory jurisdiction and authority, contrary to the text of the Clean Water Act and that it violates the 10th Amendment by interfering with state authority.
Several states filed a motion to intervene on Aug. 28 to defend the Final Rule, including Arkansas, Louisiana, Mississippi, Missouri, Montana, Texas, West Virginia and Wyoming.
These states had advocated for the Final Rule issued by the EPA.
“The state intervenors have clear and substantial protectable interests at stake in this action: The ‘property’ that is the subject of this action – particularly given plaintiffs’ request for nationwide relief – includes the sovereign lands and waters within the state intervenors’ borders; the scope of the State Intervenors’ power and duty to regulate use of that property, including under the Clean Water Act; the scope and volume of litigation to which the state intervenors are exposed from exercising those powers; and the state intervenors’ sovereign right to develop their natural resources without interference from other states,” according to the intervention motion.
“Many of the state intervenors asked EPA to revise its regulations because certain states were abusing their Section 401 Certification authority to delay and obstruct projects affecting other states for policy reasons unrelated to the Clean Water Act. Not surprisingly, the state intervenors supported and continue to support EPA’s promulgation of the clarified regulations to stop that abuse.”
The states believe the regulations “strike a reasonable and legally-correct balance between the states’ sovereign powers and their obligation not to infringe the Commerce Clause, the sovereign rights of other states, and the Takings Clause rights of applicants for federal permits and licenses.”
The American Petroleum Institute and the Interstate Natural Gas Association of America also moved to intervene in the case on Sept. 11. Both are national, non-profit trade associations that represent all facets of the natural gas and oil industry.
“It is readily apparent that, if the Rule is found unlawful, the Coalition’s members’ interests could be substantially impaired or impeded. If plaintiffs obtain a judgment declaring the Rule unlawful, Coalition members would not realize the benefits of the Rule and could face years of additional delays and substantial additional costs, without any commensurate benefit to the aquatic environment,” the second intervention motion read, in part.
“Accordingly, many important activities associated with oil pipelines, natural gas pipelines, and natural gas liquids pipelines may be delayed or otherwise encumbered if the Rule is declared unlawful and States and return to their previous practices of improperly denying or delaying certification.”
Additionally, the EPA moved to dismiss the plaintiffs’ case on Sept. 14.
“Plaintiffs’ claims are not ripe, nor do they have standing to assert them. Where, as here, there is no statutory provision providing for direct review of a new regulation, that regulation is not ordinarily ripe for judicial review under the APA until the scope of the controversy has been reduced by application of the regulation in some concrete action that harms or threatens to harm a plaintiff,” counsel for the EPA said.
“Here, the Certification Rule does not directly regulate plaintiffs and plaintiffs have not identified an instance where the Rule has even been applied, much less a concrete project where the Rule was applied to their detriment. Thus, plaintiffs’ challenge is not ripe, and the Court must dismiss it for lack of subject matter jurisdiction.”
The EPA said the plaintiffs’ claims have failed to identify an actual injury, are speculative and predicated on events which have yet to occur.
“Likewise, plaintiffs do not have Article III standing to press their claims because they have failed to identify an injury in fact. Again, plaintiffs have failed to identify any planned or even proposed activities where the Certification Rule will be applied, much less applied in a way that would result in their feared harms,” according to the EPA.
“Thus, the harms they allege, such as loss of recreational uses of waters or reduced ability to participate in certification proceedings, are highly speculative, attenuated, and contingent upon future events that are also speculative – not imminent or concrete.”
The EPA’s Final Rule became effective on Sept. 11.
For violations of the Administrative Procedure Act, the Clean Water Act and the 10th Amendment to the U.S. Constitution, the plaintiffs are seeking the following reliefs:
• A declaratory judgment pursuant to 28 U.S.C. Sections 2201-2202 that defendants are each in violation of the Administrative Procedure Act, Clean Water Act, and the 10th Amendment of the U.S. Constitution because the Certification Rule is: Arbitrary, capricious, and otherwise not in accordance with law, in excess of statutory jurisdiction, authority, or limitations, short of statutory right, and contrary to constitutional right, power, privilege, or immunity;
• An order vacating and setting aside the Certification Rule;
• An award to plaintiffs of reasonable attorneys’ fees and expert fees in bringing and maintaining this action pursuant to 28 U.S.C. Section 2412; and
• An award to plaintiffs of any other relief that the Court deems necessary or appropriate.
The plaintiffs are represented by Kacy Manahan and Deanna Kaplan Tanner of Delaware Riverkeeper Network, in Bristol.
The defendant is represented by Leslie M. Hill and Vanessa R. Waldref of the U.S. Department of Justice, in Washington, D.C.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-03412
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com