Advance Notice: Briefs

Nessel joins group of AGs against ‘unlawful’ Trump EPA regulatory changes

By: - October 25, 2019 5:55 pm

Image by Arek Socha from Pixabay

Michigan Attorney General Dana Nessel has joined 22 other state attorneys general in opposing a proposed rule from the U.S. Environmental Protection Agency (EPA), which the AGs say would unlawfully hinder states’ abilities to protect water quality.

Dana Nessel | Ken Coleman

In the comment letter filed this week, the attorneys general cite “grave concerns” that the President Trump administration EPA’s proposed regulation update for water quality certifications would “unlawfully curtail state authority” provided under Section 401 of the Clean Water Act since its enactment half a century ago. As it stands now, section 401 of the Clean Water Act authorizes states to stop a federal project permit from being issued if the project would be in violation of the state’s water quality standards.

The proposed rule from the EPA would purportedly authorize federal agencies to disregard state-issued denials and conditions on certification applications, narrow the scope of state certification authority, restrict state conditions on Section 401 certifications and restrict the timing and scope of state review of certification applications. All actions would be in conflict with the Clean Water Act’s current language.

The 23-state comment letter challenges the EPA’s decision, arguing that it not only fails to consider any water-quality related factors, but also fails to analyze the effects of the proposed rule on the states or explain why it is changing its position from prior regulations and guidance in the first place.

The comment letter was signed by the attorneys general of Michigan, California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin and Virginia.

In related legal action, Nessel joined 21 other state attorneys general last month in filing a brief that seeks a review of a D.C. Circuit Court decision from the U.S. Supreme Court. The decision in California Trout v. Hoopa Valley Tribe limits the ability of states to ensure their water quality standards are applied to projects that require federal licenses and permits. 

Like the proposed EPA regulation change, state attorneys general argue that this court decision defies authorizations to states provided under section 401 of the Clean Water Act.

Michigan joined Oregon, California, Connecticut, Delaware, Hawaii, Idaho, Illinois, Indiana, Maine, Massachusetts, Minnesota, Mississippi, New Jersey, New Mexico, North Carolina, Rhode Island, South Dakota, Utah, Washington and Wisconsin in this matter.

Other multi-state legal action Nessel has joined since August includes: a comment letter opposing a rule to expand the federal use of “expedited removal,” which essentially authorizes a fast-track deportation process for undocumented immigrants; a brief filed in Padilla v. U.S. ICE arguing that detained immigrants who fear persecution in their country of origin should not be detained indefinitely; and a lawsuit challenging a federal rule that purportedly undermines licensing requirements for facilities in which children are kept in immigration custody. 

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Laina G. Stebbins
Laina G. Stebbins

Laina G. Stebbins covers the environment, Native issues and criminal justice for the Advance. A lifelong Michigander, she is a graduate of Michigan State University’s School of Journalism, where she served as Founding Editor of The Tab Michigan State and as a reporter for the Capital News Service. When Laina is not writing or spending time with her cats, she loves art and design, listening to music, playing piano, enjoying good food and being out in nature (especially Up North).