Nessel opposes GOP effort to halt Clean Water Act rules

BY ANNA LIZ NICHOLS, MICHIGAN ADVANCE

Michigan has joined a multi-state effort to intervene and fight against an effort from 11 Republican-led states and energy groups to block a US Environmental Protection Agency (EPA) rule that allows states to reject federal projects that could violate that state’s water quality standards.

The rule at the center of the lawsuit raised by Republican-led states including Louisiana, Alaska and Mississippi is the Clean Water Act Section 401 Water Quality Certification Improvement Rule. Effective as of November 2023, the rule reinstated a decades-long rule that allowed states to review and “veto” federal projects, barring permits, should the project violate state rules surrounding environmental standards.

The rule had been limited under former President Donald Trump’s administration.

The states and organizations challenging the rule said in a December filing that the limits placed under the Trump administration are, “necessary to ensure that the certifying authority does not inappropriately thwart nationally important projects or critical infrastructure.”

They add that the 2023 version of the rule is “arbitrary and capricious” limiting vital projects and undermines the “holistic” approach the EPA took in 2020 to limit state abuses of the rule.

Michigan Attorney General Dana Nessel and 17 other attorneys general filed a request to be allowed to defend the current rule on Friday.

President Joe Biden’s administration has restored rules and regulations that allow states to protect their natural resources Nessel said in a news release. She previously joined legal opposition to the limits on state’s authority in recent years.

“The Trump administration wrongfully attempted to cut states out of safeguarding our water quality in federal projects, despite a clear responsibility to do so by Congressional directive under the Clean Water Act,” Nessel said in a news release Friday. “Protecting Michigan’s water is a vital interest and duty of the State, and I proudly support the federal government’s efforts to recognize the importance of these crucial states’ rights, and will defend them from these legal challenges alongside my colleagues.”

Michigan joins several other states in the filing: California, Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and the District of Columbia.

In the filing. the group says the 2023 rule rectifies the shortcomings and limits in the 2020 rule which dilutes the intended purpose of the rule giving the federal government ultimate control on projects that have widespread implications for the state.

“Plaintiffs boldly claim that EPA’s return to an understanding of section 401 certification that governed the Clean Water Act for over 50 years is overly broad or burdensome. …The opposite is true,” the filing said. “Placing the ultimate authority to ensure proposed projects comply with state water quality requirements in the hands of states is the core reason Congress included the section 401 certification requirement in the first place.”

This coverage was republished from Michigan Advance pursuant to a Creative Commons license.