Note: this is part 2 of 3 in my series of how the new administration may impact environmental law and policy in the Pacific Northwest. For background, please see Part 1.
One of the key factors influencing environmental law and policy in the Pacific Northwest is the presence of and obligations owed to a number of tribes that are parties to treaties with the United States that extend back to the 1850s. The Federal Government has, historically, taken an active role in defining and enforcing those treaty rights on behalf of the tribes, and takes quite seriously its government-to-government obligations with respect to those tribes as sovereign entities (a good summary list, prepared in 2009 by the White House-Indian Affairs Executive Working Group is available here).…
If you have not yet seen the press, yesterday, EPA issued its final rule revising water quality standards for toxics in Washington. This finalizes the draft rule published more than a year ago, and comes on the heels of the lawsuit brought against EPA for not finalizing that rule in a timely fashion. It also comes on the heels of Washington submitting its own water quality standards to EPA for approval under the Clean Water Act this past August. So, the action by EPA is two-fold: first, it finalized its own rule that will be applicable in Washington (replacing the National Toxics Rule), and second, it approved and disapproved parts of Washington’s submittal. The net result is one new, comprehensive set of water quality standards that will form the basis for permits issued in Washington under the Clean Water Act.
Earthjustice, representing a number of environmental groups, sued EPA on Friday alleging that EPA is in violation of the Clean Water Act because it has not finalized the draft rule it published back in September that set water quality standards for toxics in Washington based on higher fish consumption rates. This lawsuit is not a surprise, because it came after the requisite 60-day notice was sent to EPA back in December. It is also not the first time this group of plaintiffs have sued EPA with respect to this issue, having done so more than two years ago. That lawsuit was dismissed on summary judgment.