West Virginia is among 11 Republican states to challenge a federal rule that plaintiffs in the lawsuit say makes sweeping, unlawful changes to how states make water-quality certifications for projects under the Clean Water Act.
The lawsuit, which was filed Dec. 4 in the Western District of Louisiana, also included three industry plaintiffs: the American Petroleum Institute, Interstate Natural Gas Association of America and National Hydropower Association.
Under CWA’s Section 401 certification process, as adopted in 2020, projects that result in discharges into federal waters need to obtain a state certification that the discharges do not violate the law’s water-quality provisions. Under the new rule, such projects – including solar, wind, carbon capture, clean hydrogen and pipelines – would be subject to regulations covering construction and operations issues rather than simply water quality requirements, according to the legal complaint.
The discharges covered by Section 401 can include dredged or fill material released into federal waters.
“Excessive permitting requirements stymie infrastructure development and other economic growth," John Mangalonzo, press secretary for West Virginia Attorney General Patrick Morrisey, told the West Virginia Record in an email. "Our suit merely asks the court to apply the limits on EPA’s authority found in the Clean Water Act. ”
Representing the state in the lawsuit are Solicitor General Lindsay Lee and Principal Deputy Solicitor General Scott Michael R. Williams.
The Biden EPA’s new rule upends more reasonable regulations put in place during the Trump administration three years ago, according to the lawsuit.
“(The EPA) violates the reasonable statutory limits Congress placed on the scope and duration of the Section 401 certification process,” the complaint states. “These limits are necessary to ensure that the certifying authority does not inappropriately thwart nationally important projects or critical infrastructure.”
The final water-quality certification rule was released by the EPA in September.
“This final rule updates the existing regulations to better align with the statutory text and purpose of the CWA,” a summary of the rule in the Federal Register states. The rule attempts “to clarify, reinforce and provide a measure of consistency” with how the water-quality certification regulations have been enforced over more than a half-century, the summary says.
The new rule is also consistent with the federalism principles that are central to Section 401 of the Clean Water Act, according to the summary.
The lawsuit, however, contends the 2020 rule on water quality was a better application of federalism principles outlined in the law. And it alleges that the rule will expand the workloads and oversight burdens of state environmental agencies, such as the West Virginia Department of Environmental Protection, and ultimately will make certification determinations vulnerable to civil litigation.
In addition, the industry plaintiffs could see their key projects delayed or canceled due to state objections under the new rule, hurting efforts to increase energy generation and expand critical infrastructure nationwide, according to the lawsuit.
The lawsuit asks the federal courts to declare the 2023 rule unlawful and a violation of the Administrative Procedure Act and stop the EPA from enforcing the water-quality rule.
