Several “red” states and three energy industry NGOs have filed a motion for summary judgment in their Louisiana Federal Court challenge to EPA's 2023 rule regarding the state water quality certifications required under Section 401 of the Federal Clean Water Act. The challengers' main argument is that EPA has exceeded its statutory authority by allowing states to withhold a required Section 401 Water Quality Certification for reasons having nothing to do with the discharge of a pollutant triggering the certification requirement in the first place.

I don't think EPA is going to fare any better in this case than it will in its defenses of its Waters of the United States rule which was also an attempt to undo a narrowing of Federal Clean Water Act jurisdiction by the Trump Administration. 

In addition to narrowing the reach of EPA's Clean Water Act jurisdiction with a narrower regulatory definition of Waters of the United States, the Trump Administration EPA also made it harder for States and Tribes to flex their section 401 muscle. The Biden Administration EPA reversed that action and went a considerable distance in the opposite direction. Among other things, under EPA's new regulation, states can assess the “activity” subject to a Federal license or permit requiring a state water quality certification, not merely the discharges triggering the water quality certification requirement in the first place.

This is one of the grounds on which I had predicted a challenge to this new EPA rule last fall. As I wrote then, based on what Justice Alito, writing for a solid majority of the Supreme Court, had to say in Sackett v. EPA about Congress’s intent in passing the Clean Water Act, I think it likely that same Sackett majority is going to have trouble with EPA’s suggestion that the Clean Water Act allows for this exercise of “cooperative federalism”.

Since then, our nation's highest court agreed to hear the City and County of San Francisco's appeal of a split Ninth Circuit Court of Appeals decision upholding a permit under Section 402 of the Clean Water Act. In that case, fifteen industry group are joined by a dozen or so water supply and conservation associations and more than a dozen municipal water and sewer providers in complaining that EPA has exceeded its statutory authority in a different way. 

Will the Louisiana case be a fourth Clean Water Act to be heard by the United States Supreme Court in recent years? We'll see. But EPA is going to need help from Congress to restore its Clean Water Act reach to what it once was.