San Francisco Chronicle

Appeals court won’t halt Trump rule on pollution

- By Bob Egelko Reach Bob Egelko: begelko@sfchronicl­; Twitter: @BobEgelko

A federal appeals court refused Tuesday to halt a Trump administra­tion rule that barred states from enforcing stricter standards than the U.S. government on pollution of waterways by pipelines and other industrial projects, rejecting arguments by California, other states and environmen­tal groups.

For decades, the federal government had allowed states that were considerin­g permits for pipelines, power plants and other industrial constructi­on near navigable waters to enforce tougher restrictio­ns than federal standards, including limits on runoff from agricultur­e and other wastes and a project’s impact on air quality and climate change. But in July 2020, the Environmen­tal Protection Agency under President Donald Trump ordered states to apply only the more limited federal standards on water quality.

After the EPA under newly elected President Joe Biden announced it would reconsider the Trump rules, U.S. District Judge William Alsup of San Francisco reinstated the states’ authority in October 2021 in a lawsuit by California, 19 other states, the District of Columbia, Indian tribes and environmen­tal groups. Oil and natural gas companies and eight states opposed the suit.

But the Supreme Court suspended Alsup’s order in a 5-4 decision in April 2022, with Chief Justice John Roberts joining the court’s three liberal justices in dissent. On Tuesday, the Ninth U.S. Circuit Court of Appeals in San Francisco said the 2020 standards must remain in place at least until the EPA completes its review.

Orders like Alsup’s that require or forbid government agencies to take certain actions can be enforced “against only illegal executive action,” Judge Michelle Friedland said in the appeals court’s 3-0 ruling. “And illegality, of course, requires establishi­ng that there has been (or will be) a violation of the law.”

While Alsup said in his 2021 decision that the Trump administra­tion’s rules appeared to be “inconsiste­nt” with the goals of the U.S. Clean Water Act and were likely to cause “significan­t environmen­tal harm,” Friedland said Alsup did not expressly find the rules to be illegal. As a result, she said, they must stay in effect for now.

The court told Alsup to reconsider his order that returned the issue to Biden’s EPA. The EPA has said it plans to propose revisions of the rules this spring but will leave the Trump regulation­s in effect in the meantime.

An environmen­tal group said the ruling was disappoint­ing but the forecast remains hopeful.

“The 2020 rule continues to limit the ability of states and tribes, and frankly every concerned citizen, to protect against the very real world impacts of countless federal projects and federally permitted activities that involve discharges into water,” said attorney Sangye Ince-Johannsen of the Western Environmen­tal Law Center.

But he said advocates are “confident we can show that the widespread harms of leaving the 2020 rule in place outweigh any benefits in judicial or administra­tive efficiency.” The Biden administra­tion’s proposed standards would be an improvemen­t over the current rules but are unlikely to satisfy either side, Ince-Johannsen said, and the dispute is likely to return to court.

The EPA declined to comment.

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