For the second time this week, Attorney General Gurbir Grewal has joined with 19 other states suing to block a new Environmental Protection Agency rule — this time over a regulation they say unlawfully restricts the authority of states to protect their waters from pollution.
The latest litigation has key significance for New Jersey as the rule change undercuts the states’ authority to exercise oversight of federally permitted projects such as pipelines, industrial plants and hydroelectric dams, among others.
For decades, states have used a provision in the federal Clean Water Act to determine whether these major infrastructure projects would degrade water quality if approved, and to impose conditions to prevent any harm, or even deny certification for the projects.
In Connecticut and New York, officials have used the provision, known as Section 401, to deny major pipeline projects in their states.
In New Jersey, opponents of the 120-mile PennEast pipeline have cited the provision as probably the most effective tool for stopping that $1 billion project. The pipeline would begin in Pennsylvania and end in Mercer County and cross as many as 38 C-1 streams, the most pristine and supposedly most protected waterways in New Jersey. The EPA rule came out after an executive order last year to limit the scope and time states would have to review new energy projects.
President Trump, along with allies in the oil and gas industries, has criticized states for expanding the scope of 401 reviews to unnecessarily delay projects that proponents say are in the public interest. Cheap natural gas has helped dramatically lower heating bills for customers in New Jersey and elsewhere while also holding down electric bills.
Filed in the U.S. District Court in California, the lawsuit claims the new rule must be vacated because it unlawfully limits the ability of states to protect precious wetlands and waterways within their own borders, violates the Clean Water Act and runs afoul of the federal Administrative Procedures Act.
Grewal: ‘The fight to protect our environment continues’
“The federal government is taking unprecedented steps to stop states from fulfilling our important duties to prevent the pollution of our waters,’’ said Grewal. “This EPA is trying to strip away our ability to do so, which is why we’re taking them to court. The fight to protect our environment continues.’’
New Jersey has contested many of the environmental rollbacks initiated by the Trump administration in court, including a lawsuit filed Monday that seeks to overturn a new rule easing limits on mercury emitted by power plants.
Other multistate lawsuits joined by New Jersey involve a weakening of fuel-efficiency standards for cars; relaxing greenhouse emission standards; and an easing of the Endangered Species Act.
The new rule on pipeline projects was issued by the EPA earlier this month. Besides limiting the kinds of conditions states can impose on projects, the rule prohibits states from placing any new requirements relating to nonpoint sources of pollution, which is the biggest source of degradation of waterways in New Jersey.
In the lawsuit, the states argue the curtailment of their authority under Section 401 is unlawful because it is contrary to the Clean Water Act; ignores prior Supreme Court precedent interpreting Section 401; and ignores previous EPA guidance, spanning decades and multiple administrations.
“We’re very pleased to see the attorney general take another action to challenge the many environmental rollbacks of the Trump administration,’’ said Tom Gilbert, campaign director for ReThink Energy NJ, a group opposing the PennEast project.