August 28, 2018

Please mark your calendars and plan to attend the upcoming WAGLAC meetings.
*You are encouraged to register for WAGLAC prior to Monday, October 8th, so that we may confirm room size and meals. 
November 7-9, 2018 
Heathman Hotel
Portland, Oregon
Check in on November 7 th
Meeting start 8:00 am on Nov 8th
Meeting end at noon on Nov 9 th
February 18-20, 2019
The Westin San Diego
San Diego, CA
Federal Appeals Court: Chemical Disaster Rule Must Go into Effect
Washington AG Ferguson successfully challenges Administration’s delay of facility safety rule
August 17, 2018

A federal appeals court agreed with Washington Attorney General Bob Ferguson and 10 other attorneys general that the Administration’s delay of the Chemical Disaster Rule violated the Clean Air Act. The Chemical Disaster Rule updates important safety requirements for large industrial facilities that handle hazardous chemicals.

The Chemical Disaster Rule aims to reduce the threat of chemical releases with new standards and required safety audits, in addition to bolstering emergency preparedness. The rule applies to more than 12,000 facilities nationwide, including refineries, chemical manufacturers and others that use, store or have the potential to release highly hazardous chemicals.

Once a rule is finalized, the Clean Air Act allows for a 90-day delay to reconsider it in response to litigation. Beyond 90 days, the act clearly states that “reconsideration shall not postpone the effectiveness of the rule.”

The Chemical Disaster Rule was finalized on Jan. 13, 2017. On Jan. 26, under the Trump Administration, the Environmental Protection Agency delayed its effective date for 60 days — along with 29 other environmental regulations — shortly after the president took office. The Trump Administration postponed the 30 environmental regulations without providing an opportunity for public comment.

After the initial delay on Jan. 26, the Trump Administration postponed the Chemical Disaster Rule twice more while it reconsidered the rule.

The New York Attorney General's office led a coalition of 11 attorneys general who sued over the EPA's delay of the rule. In addition to Washington, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Rhode Island and Vermont also joined the lawsuit.
Attorney General Frosh Joins Coalition of States, Counties in Opposing EPA Plan to Censor Science Data
August 17, 2018

Maryland Attorney General Brian E. Frosh, part of a 23-member coalition of states, counties, and cities, called on Acting Environmental Protection Agency (EPA) Administrator Andrew Wheeler to withdraw his predecessor’s “harmful and deeply flawed” proposal to censor science at the Agency.  The call was part of detailed legal and technical  comments  submitted by the coalition on former EPA Administrator Scott Pruitt’s proposed “Strengthening Transparency in Regulatory Science” rule.

That proposed rule would exclude from EPA decision-making any scientific studies, models, and other important information that have been validated by peer review simply because not all underlying data are available to the public. The coalition charges that, in addition to making “little sense as a matter of science,” the proposal is “arbitrary and capricious, violates controlling federal law, and contains clear errors in reasoning.” The coalition affirms that they “stand ready to pursue legal remedies should EPA persist in this misguided effort.” 
Senator Barrasso Seeks to Limit States’ Veto Power Over Clean Water
August 17, 2018
Sen. John Barrasso is not pleased with Washington state.
Although that is not an unusual position to hold in Wyoming — which is engaged in a legal dispute with the coastal state over coal — what the senator plans to do about his frustration could narrow a unique power that allows states to veto the federal government.

Barrasso has proposed changes to the Clean Water Act that he argues will close loopholes that are ripe for abuse. The provision up for revision, section 401, grants states the authority to certify projects that could affect their waterways. The flip side of that authority is states can refuse to greenlight a project or require conditions for certification — even if the federal government has approved it.

Many times in Wyoming, certification is a fairly straightforward process. But large fossil fuel projects have been blocked in other parts of the country through the use of the Clean Water Act. Of particular irritation in Wyoming is the ongoing battle over a coal export terminal that’s been blocked by the state of Washington.
Barrasso’s bill has not come up for a vote. But environmental groups are riled up that a cornerstone environmental law could be snipped away by Congress and are criticizing Wyoming for not standing up for states’ rights.
Summary of Hearing on 3303

Attached below is an article providing a summary of the hearing on S 3303, (Section 401 of the Clean Water Act)
Clay Smith, the American Indian Law Deskbook chief editor, resumed the practice of summarizing Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision. The summaries have been available for Deskbook chapter editors but may be useful to other attorneys in AGOs with Indian law-related responsibilities.
The summaries are posted in CWAG’s Google Docs account. If any AAG/DAG wishes to access the summaries folder (or “drive”), please have the attorney send her/his office email address to or The attorney will be sent a link to the case summaries folder. The link should be saved because the folder is regularly updated with new summaries. Any summary can be reviewed on-line and/or downloaded in a number of different applications, including Word and pdf. Contact Clay or Andrea Friedman with any questions.
Nevada State Engineer Denies Las Vegas Water District’s Application for Interbasin Transfers of Groundwater in Eastern Nevada to Las Vegas

On August 17, 2018, the Nevada State Engineer entered an order denying the water right applications filed by the Las Vegas Water District in a long running dispute over the piping of water from Eastern Nevada to Las Vegas. The Southern Nevada Water Authority plan to transfer 84,000 acre-feet of ground water from Eastern Nevada to Las Vegas has been the subject of multiple federal and state lawsuits.

In 2013, the Seventh Judicial District Court in and for White Pine County, Nevada remanded the State Engineer’s Rulings 6164 through 6167, and ordered the State Engineer to among other things to recalculate the water available for appropriation from Spring Valley. The Court instructed the State Engineer to use an ET Capture rule “that requires determinations regarding how much water is available for appropriation to be made on a case-by-case basis. . .” 

In Ruling 6446, the State Engineer concluded that under the Court’s instructions he had no choice but to deny the Spring Valley applications. As part of his 111-page Ruling, however, the State Engineer discussed in detail why the Court’s instructions were contrary to Nevada law and how they “would disrupt the current, accepted method of water resource administration in Nevada, and would result in inconsistent and variable estimates of the amount of groundwater available for appropriation in any given basin.” 

The State Engineer then requested the District Court to reconsider its instructions to recalculate water availability under an exception to the Law of the Case Doctrine. The State Engineer also requested the Court to review its instructions requiring recalculation of the appropriations from Cave Valley, Dry Lake and Delamar Valley to avoid conflicts with downgradient, existing water rights. 
CWA 401 Webinar

The Western Governors’ Association will host the webinar, The Importance of State Authority under Clean Water Act Section 401, at 11 a.m. MT on Wednesday, Sept. 5. The webinar will provide an overview of states’ legal authority to issue water quality certifications and the importance of Section 401 in the protection of the nation’s water resources.

In enacting the federal Clean Water Act, Congress established a system of cooperative federalism, whereby states – in partnership with federal agencies – are granted meaningful authority to ensure the proper balance of powers in the implementation and enforcement of the Act’s various programs. The states’ Section 401 authority has been the target of recent legislative and regulatory efforts to diminish and subordinate the states in environmental review processes.

The webinar will be moderated by WGA policy Advisor Ward Scott. Panelists include: Julia Anastasio, Executive Director and Chief Council, Association of Clean Water Administrators; and Darrell Early, Chief, Natural Resources Division, Idaho Office of the Attorney General. Additional remarks will be provided by WGA Executive Director Jim Ogsbury.
CWAG oversees and coordinates the Western Attorneys General Litigation Action Committee (WAGLAC), which consists of assistant attorneys general involved in litigation related to the environment, natural resources, public lands and Indian law. WAGLAC was formed over 30 years ago and meets three times per year to discuss the latest developments in these areas of the law. AGO staff gain important contacts throughout the country in these important areas of the law.