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The new EPA 401 Cert. Regs Go Final and Are Immediately Challenged in Court

The final 401 cert. rule was published on Monday at 85 Fed. Reg. 42,210 (July 13, 2020). It becomes effective on September 11, 2020. Here's a link to the Federal Register Notice. https://www.federalregister.gov/documents/2020/07/13/2020-12081/clean-water-act-section-401-certification-rule


The Delaware Riverkeeper wasted no time in filing its 88-page complaint in the E.D. of Pennsylvania (No. 2:20-cv-3412) against the EPA challenging the recently-promulgated 401 cert. rule. Here is a link to the complaint: http://paenvironmentdaily.blogspot.com/2020/07/delaware-riverkeeper-files-legal.html


The lengthy complaint raises numerous APA arbitrary and capricious claims and also alleges a violation of the 10th Amendment, which may be a first for an environmental group to argue. Given that EPA comprehensively rewrote the regulation and in the process substantially trimmed the rights of states to condition 401 certifications, it is not surprising that this plaintiff found a lot of low-hanging fruit to challenge.


I doubt this will be the only case filed challenging this controversial rule. It will also be interesting to see if the rule falls within the purview of the Congressional Review Act in case the Dems take the Whitehouse and the Senate. The deadline is 60 legislative days from when the rule is presented to Congress. That's a squishy number, depending on what constitutes a "legislative day." I'm sure EPA was doing that math as it pushed this rule through.



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