Attorney General Letitia James, leading a coalition of 15 attorneys general and the City of New York launched a lawsuit this week over the Trump Environmental Protection Agency (EPA) and Army Corps of Engineers (ACOE) for rolling back regulations fundamental to improving and maintaining the health of the nation’s waters.
The Trump Administration’s “Recodification Rule” repeals the Clean Water Rule, a science-based Obama-era federal regulation that ensured the nation’s lakes, rivers, streams, and wetlands received proper protection under the Clean Water Act.
The Recodification Rule was finalized in October 2019, and replaced the Clean Water Rule’s definition of the waters protected by the Act with a more narrow, outdated 30 year-old definition. This definition ignores the best and most current science on the connectivity of smaller or infrequently-flowing bodies of water, such as headwater streams, tributaries, and wetlands, to downstream “navigable” waters.
“Access to clean water is a fundamental right for all New Yorkers and Americans,” said Attorney General James. “This regressive rule ignores science and the law and strips our waters of basic protections under the Clean Water Act. Attorneys general across this nation will not stand by as the Trump Administration seeks to reverse decades of progress we’ve made in fighting water pollution.”
The basis for the 2015 Clean Water Rule was supported by 1,200 peer-reviewed scientific studies that concluded that many of the nation’s larger waters are connected to upstream headwaters, intermittent streams, wetlands, and tributaries. Because of this interconnectivity, when wetlands and relatively small or infrequently-flowing upland streams are subjected to physical, chemical, or biological pollution, this pollution often harms downstream waters such as rivers, lakes, estuaries, and oceans. The New York Office of the Attorney General led a coalition of states in supporting the 2015 Clean Water Rule and its strengthening of protections afforded to our nation’s waters. The New York Attorney General’s Office also sued the Trump Administration when it issued a regulation suspending the Clean Water Rule for two years, and the courts found that rule illegal.
The coalition argues that Trump Administration’s reversion to the 1986 definition of the waters protected under the Clean Water Act is arbitrary and capricious, and violates the Administrative Procedure Act. For example, the Recodification Rule is illegal because it does not consider the Clean Water Act’s sole objective of protecting the integrity of the nation’s waters nor does it comply with subsequent Supreme Court precedent. Further, the Rule, as adopted, fails to consider scientific and factual findings – established in the 2015 Clean Water Rule rulemaking – on the interconnectivity of waters.
All of the lower 48 states have waters that are downstream of other states, and New York, for example, is downstream of 13 states. As such, New York and other states are recipients of water pollution generated not only within their borders, but also from upstream sources outside their borders over which they lack jurisdiction.
Since 2017, no other state attorney general’s office has taken more legal actions against federal agencies regarding issues related to the environment than the Office of the New York Attorney General. In total, New York has taken 129 legal actions against the Trump Administration in the areas of safety and toxic chemicals, public lands and wildlife, clean energy and energy efficiency, clean air, clean water, and climate change.
Joining Attorney General James in today’s action include the attorneys general of California, Connecticut, Massachusetts, Maine, Maryland, Minnesota, Michigan, New Jersey, Oregon, Rhode Island, Virginia, Vermont, Washington, District of Columbia, and the Corporation Counsel of the City of New York.
This matter is being handled for the Attorney General’s Environmental Protection Bureau by Assistant Attorneys General Philip Bein and Timothy Hoffman, Deputy Bureau Chief Monica Wagner, Environmental Scientists Jennifer Nalbone and Charles Silver, and Policy Analyst Jeremy Magliaro, under the supervision of Bureau Chief Lemuel M. Srolovic. The Environmental Protection Bureau is part of the Division of Social Justice under the supervision of Chief Deputy Attorney General Meghan Faux and First Deputy Attorney General Jennifer Levy.
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