PHILADELPHIA – A federal judge has denied an attempt from the Environmental Protection Agency to dismiss a lawsuit brought by the Delaware Riverkeeper Network, over the implementation of a specific tenet of the Clean Water Act.
On June 1, the EPA issued a Final Rule which largely changed its regulations in implementing Section 401 of the Clean Water Act, also published in the Federal Register on July 13.
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 Act’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.
Delaware Riverkeeper Network and “The Delaware Riverkeeper” Maya van Rossum first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on the following day, July 14, versus the EPA and its Administrator, Andrew R. Wheeler.
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.
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.
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.
Additionally, the EPA moved to dismiss the plaintiffs’ case on Sept. 14, believing the claims were untimely, lacked standing and could not identify an interest which would harm the plaintiffs.
The EPA’s Final Rule became effective on Sept. 11.
The plaintiffs opposed the dismissal motion in a brief filed Sept. 28.
“Plaintiffs’ have standing to mount this facial challenge, as the Certification Rule immediately creates a substantial risk that federally licensed and permitted projects will degrade the resources of the Delaware River watershed thereby harming plaintiffs’ interests; and because the Rule curtails plaintiffs’ ability to advocate for greater environmental protections in the Section 401 certification process, and to participate in the pollution control efforts of certifying authorities,” plaintiff counsel said.
UPDATE
U.S. District Court for the Eastern District of Pennsylvania Judge Michael M. Baylson concurred with the plaintiffs, in an opinion issued on Dec. 18.
“The parties’ interests here are sufficiently adverse because there is a ‘substantial threat of real harm’ to plaintiffs if the Certification Rule remains in effect. Plaintiffs have pointed to multiple changes to the Section 401 certification process which would harm their interests were there to be a federally-approved project in the Delaware River watershed in the future,” Baylson said.
“While plaintiffs have not provided information as to how often there are projects subject to the certification process in this area, because the Certification Rule applies to every project in such a way that would harm them, it is reasonable to assume that this harm is likely to occur.”
Baylson added the plaintiffs’ complaint is based entirely on the Final Rule itself and the administrative record, arguing that they do not comport with the Administrative Procedure Act, Clean Water Act and 10th Amendment.
“Their allegations of harm are more specific in terms of which potential projects the Certification Rule applies to (all of them), as well as the physical location that is of concern (the Delaware River watershed),” Baylson said.
“Further, because the Certification Rule alters the substantive requirements of the certification process for every project that will occur in the future, the likelihood of harm is more significant.”
However, the Court granted as unopposed the motions to intervene by: The states of Arkansas, Louisiana, Mississippi, Missouri, Montana, Texas, West Virginia and Wyoming, the American Petroleum Institute, the Interstate Natural Gas Association of America, and the National Hydropower Association.
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, plus Mark L. Freed of Freed Law Firm, in Berwyn.
The defendants are 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