A Pennsylvania-based environmental nonprofit filed suit Monday against the US Environmental Protection Agency (EPA) concerning the agency’s interpretation of a section of the Clean Water Act.
Established in 1988, the Deleware Riverkeeper Network (DRN) works to “protect and restore the Deleware River, its tributaries, habitats and resources” throughout Pennsylvania, New York, New Jersey, and Deleware. DRN is suing the EPA and its Administrator, Andrew Wheeler.
The 88-page complaint claims that the agency’s promulgation of the Clean Water Act Section 401 Certification Rule “eviscerates the ability of states, tribes, and interstate authorities to protect water quality from federally-approved projects.” The complaint specifically calls out fossil fuel development and “private investment in the nation’s energy infrastructure.” It argues that the EPA’s new interpretation “flies in the face of nearly fifty years of cooperative federalism.”
The suit highlights Executive Order 13868 titled “Promoting Energy Infrastructure and Economic Growth” issued by President Trump in April 2019. The order explicitly called for a review of Section 401 to determine whether any of its provisions should be resolved to comply with the policies and objectives described in the executive order. Accordingly, in June 2019, the EPA issued new guidance and regulations regarding Section 401 enforcement.
The rule requires permit applicants who plan to conduct activities that may cause pollutant discharge into US waters to obtain certification from the state in which the discharge originates. DRN asserts that the EPA’s new interpretation “diminishes the previously broad scope of Section 401 … creat[ing] a substantial risk that the Deleware River watershed will be subject to increased [degradation] caused by federally licensed/permitted projects [such as] natural gas infrastructure development.”
The complaint was filed in the US District Court for the Eastern District of Pennsylvania. DRN requests declaratory judgment and an order vacating and setting the Certification Rule aside.
