Federal environmental rollbacks

Under the 1972 federal Clean Water Act, Congress specifically reserved that state and tribal governments have the authority to protect water quality in their respective jurisdictions. This key reservation of state and tribal rights is detailed in Section 401 of the Act, which requires any applicant seeking a federal license or permit that could result in a discharge to U.S. waters first obtain water quality certification from the state or tribal government where the discharge originates.

Under the Section 401 certification process, states and tribal governments evaluate proposals for compliance with state and tribal water quality requirements, and may add conditions or deny applications based on those requirements. Any conditions from a state or tribal water quality certification become conditions in the federal permit.

In this way, Congress ensured states and tribes could continue to protect their waters, including by applying standards more stringent than federal standards, even when the federal government is the permitting and/or licensing authority.

Ecology’s concerns
The new Section 401 rule limits what types of pollution discharges a state can review under the Clean Water Act. It also limits the amount of information a state can request from an applicant, dramatically shortens the amount of review time states have to act on an application, and limits the conditions that states can put into 401 certifications to protect state waters from pollution.

More information

• 401 water quality certification

Status
June 1, 2020 - EPA announces final rule

Legal actions

• July 21, 2020 – Washington joined 19 other states and the District of Columbia to challenge EPA’s final 401 rule.

History

• Sept. 18, 2019 – Testimony from Ecology Director Maia Bellon to House Committee on Transportation & Infrastructure Subcommittee on Water Resources and Environment
• Oct. 21, 2019 – Comments from Ecology Director Maia Bellon
• Nov. 19, 2019 – Testimony from Ecology Senior Assistant Attorney General Laura Watson to Senate Committee on Environment and Public Works
• June 1, 2020 - Ecology Director Laura Watson statement on EPA final rule
• July 21 - Attorney General Bob Ferguson statement on lawsuit challenging 401 rule

The 1972 federal Clean Water Act affords protections to “waters of the United States," governs water pollution, outlines state and tribal government authority, and helps protect Washington water. 

Ecology’s concerns
A new rule strips federal protections from tens of thousands of wetlands and streams. Although Washington law still protects these waters, the changes leave the state without an established process for authorizing impacts and setting mitigation requirements for streams and wetlands protected under state, but not federal, law. The federal retreat is creating uncertainty by putting private and public developers at risk of violating state water quality protections.

More information

• Federal wetland regulations

Status
April 21, 2020 – EPA publishes final rule to revise Waters of the United States definition.

Legal actions

• Dec. 20, 2019 – Washington joined 14 other states and New York City to challenge EPA’s repeal of the 2015 WOTUS Rule and replacement of that rule with prior agency guidance. (The states and city moved to voluntarily dismiss this case, filed in U.S. District Court for the Southern District of New York, after EPA finalized the 2020 WOTUS Rule on April 21, 2020).
• May 1, 2020 – Washington joined 17 other states, the District of Columbia, and New Yok City to challenge the 2020 WOTUS Rule in the U.S. District Court for the Northern District of California.

History

• April 19, 2019 – Ecology comments on proposed rule
• December 20, 2019 – Statement from Attorney General Bob Ferguson on lawsuit challenging rule
• April 21, 2020 – Statement from Ecology Director Laura Watson on final rule

The Human Health Criteria are a set of water quality standards used to determine how clean the state’s waters must be in order to protect human health. The criteria are sometimes called the “fish consumption” standards, because the level of toxics in fish is one of the tools used to set allowable levels. The criteria set maximum levels for toxics such as PCBs in these waters.

Ecology’s concerns
EPA adopted changes to our proposed water quality standards in 2016. Ecology accepted those changes and has been working in good faith with local governments and industry to implement those standards. Rolling back the standards now casts that regulatory process into uncertainty, and goes against the wishes of Ecology, tribes, and many groups with vital interests in the 2016 standards.

More information

• Updates to the water quality standards

Status
May 13, 2020 – EPA adopted final rule revising water quality standards for Washington state

Legal actions

• June 6, 2019 – Lawsuit filed in U.S. District Court, Western District of Washington, after EPA made its decision to revise Washington’s existing rule.
• April 14, 2020 – Motion for Summary Judgement filed in case, asking judge to rule EPA’s action a violation of the federal Clean Water Act.

History

• May 10, 2019 – Statement from Gov. Jay Inslee and Attorney General Bob Ferguson 
• June 6, 2019 – Statement from Attorney General Bob Ferguson on lawsuit challenging rule
• Sept. 25, 2019 – Testimony from Ecology Director Maia Bellon
• Oct. 6, 2019 – Comments from Ecology Director Maia Bellon
• April 17, 2020 – Statement from Ecology Director Laura Watson on final rule

Under the federal Clean Air Act of 1970, vehicle emission standards are set by the federal government. However, the Act allows EPA to give a waiver to California to set its own standard, because of California’s unique air quality issues and long history of actions to reduce vehicle emissions. Other states can then choose whether to adopt the federal standard or California’s version. Washington has adopted some of California’s emission standards. The federal government granted California a waiver for its most recent vehicle standards in 2013. The federal Clean Air Act establishes a process to grant a waiver, but there is no process in the law to revoke previously approved waivers.

Ecology’s concerns

The EPA rescinded California’s existing 2013 waiver in September 2019, then issued new national emissions standards for vehicles through 2026 with vastly lower requirements, and eliminating added credits for electric vehicles. Because vehicles are the largest source of air pollution in Washington, we depend heavily on these emission standards to protect public health, and to reduce greenhouse gas emissions in order to meet the targets set by the Legislature.

Status

• Sept. 27, 2019 – EPA and NHTSA adopt final “Safer Fuel-Efficient Vehicles Rule” Part 1 – withdrawing California’s waiver.
• March 31, 2020 – EPA and NHTSA adopt final “Safer Fuel-Efficient Vehicles Rule” Part 2 – implementing weaker vehicle emission standards

Legal actions

• Sept. 20, 2019 – Washington joined a multistate coalition to challenge the National Highway Traffic Safety Administration’s (NHTSA) regulation barring states from setting more stringent emission standards than the federal government in the U.S. Court of Appeals for the District of Columbia Circuit.
• May 27, 2020 - Washington joined 27 other states and municipalities to challenge the EPA and NHTSA's lower vehicle emissions standards in the U.S. Court of Appeals for the District of Columbia Circuit. 

More information

• Washington’s Clean Cars program

History

• May 1, 2018 – Statement from Attorney General Bob Ferguson on lawsuit challenging rescinding existing emissions standards
• Oct. 26, 2018 – Comments from Ecology Director Maia Bellon on rule proposal
• March 31, 2020 – Statement from Ecology Director Laura Watson on final rule
• May 27, 2020 - Statement from Attorney General Bob Ferguson on lawsuit challenging final rule
• May 27, 2020 - Statement from Ecology Director Laura Watson on lawsuit challenging final rule

In much of the United States, power plants — either coal, oil or natural gas — are the largest source of greenhouse gas emissions, and the biggest sources of other air pollution such as sulfur dioxide, nitrogen oxides, and particulate pollution. Under a 2015 EPA rule known as the “Clean Power Plan,” states developed plans to reduce these emissions by nearly one-third. The EPA revoked this rule in 2019 and introduced a new plan, the “Affordable Clean Energy” rule.

Ecology’s concerns
Coal power plants are the largest source of greenhouse gas emissions in much of the United States. These emissions exacerbate climate change, which has serious impacts on Washington’s environment and economy. The “Affordable Clean Energy” plan replaces the earlier “Clean Power Plan,” gutting most of its ability to reduce greenhouse gas emissions and toxic air pollution.

More information

• Washington’s clean power plan

Status
June 19, 2019 – EPA adopts final “Affordable Clean Energy” rule.

Legal actions

• Aug. 13, 2019 – Washington joined 21 other states and seven cities in challenging the repeal of the Clean Power Plan in the U.S. Court of Appeals for the District of Columbia Circuit. 
• Jan. 19, 2021 - U.S. Court of Appeals for the District of Columbia Circuit vacated the Affordable Clean Energy Rule and remanded it to EPA.

History

• Oct. 21, 2018 – Statement from Gov. Jay Inslee and Attorney General Bob Ferguson on proposed rule
• Oct. 31, 2018 – Comments from Ecology Director Maia Bellon and Department of Commerce Director Brian Bonlender
• Aug. 13, 2019 - Statement from Attorney General Bob Ferguson on lawsuit challenging repeal of Clean Power Plan

Federal mercury and air toxics standards (MATS) limit the amount of mercury and other toxic emissions from power plants.  A new federal rule removes the finding that it is "appropriate and necessary" to regulate mercury and other hazardous air pollutants from power plants, after considering the cost of regulation, under Section 112 of the Clean Air Act. In arriving at this conclusion, the rule disregards the related benefits MATS provides by reducing other forms of air pollution, and fails to take into account the full range of benefits the MATS rule has provided to public health and the environment.

Ecology’s concerns
The new federal rule no longer holds that regulating mercury and other toxic air pollution is “appropriate and necessary” under the Clean Air Act. By withdrawing its “appropriate and necessary” determination, EPA undercuts the basis for the entire rule. The rule also eliminates the consideration of co-benefits of toxic emission reductions, such as reducing particulate pollution. Between 2010 and 2017, the prior regulations reduced hazardous air pollution from power plants by 96 percent.

Status
April 16, 2020 – EPA adopts final Mercury and Air Toxics Standards

History

• April 16, 2019 – Comments from Ecology Director Maia Bellon and Secretary of Health John Wiesman

The "Strengthening Transparency in Regulatory Science" rule is an EPA regulation that changes the way the agency considers scientific data and models when developing proposed policies and regulations.

Ecology’s concerns

The rule allows EPA to eliminate from consideration or give reduced weight to studies, information, and evidence based on vague openness criteria and the discretion of the EPA administrator rather than relying on the best available science as required by the federal Clean Air Act. The rule would open the door for the quality, completeness, and scientific integrity of EPA’s decisions and environmental standard-setting to be compromised. This is a special concern for studies that focus on public health.

Status

Dec. 30, 2020 – EPA adopts final rule

Legal actions

• Feb. 1, 2021 – The U.S. District Court for the District of Montana vacated the final rule and remanded the rule to EPA.

History

• Aug. 15, 2018 – Comments from Ecology Director Maia Bellon, Washington Department of Fish and Wildlife Director Kelly Susewind, Commissioner of Public Lands Hilary Franz, and Washington State Recreation and Conservation Office Director Kaleen Cottingham