August 9, 2020

Suit Filed by Virginia AG Herring – Citizens’ Rights to Protect Our Waters at Stake

On July 21, 2020, Virginia Attorney General Mark Herring announced he was suing the U.S. Environmental Protection Agency (EPA) over an attack on Clean Water Act protections. President Trump’s EPA recently changed a rule governing states’ powers to protect our waters and communities and this suit is an important action on behalf of all Virginians to defend our rights.


Federally-licensed projects that may discharge pollution to our streams cannot be built until a state issues a “water quality certification,” using authority from section 401 of the Clean Water Act. The law gives states the power to veto a proposal or demand major changes, if they believe their standards could be violated. States that used this power in recent years angered corporations and their defenders in government, because citizens were able to stop destructive gas pipeline projects.

Virginia’s actions under Section 401 of the Clean Water Act became major issues in the fights against the Atlantic Coast Pipeline (ACP) and Mountain Valley Pipeline (MVP). Wild Virginia and our allies strongly opposed the State Water Control Board’s issuance of certifications in 2017. We argued that the pipelines would violate water quality standards but our warnings were dismissed by the Department of Environmental Quality (DEQ) and ignored by the majority of Water Board members. Now, damages caused by MVP have proven we were right.

The flaws in Virginia’s use of section 401 that were revealed during the pipeline battles make us even more resolute to fix those problems. We continue to insist that Virginia use its full authority under this part of the Clean Water Act. But to ensure that this is possible, we must fight any attempt to weaken this authority, so state governments and the people they are to represent can defend their interests.

The recent changes violate a basic principle Congress honored when it adopted the Act in 1972 – that states would retain the authority they had always possessed, to reject federally actions that would harm their waterbodies and their people.

The Current Fight

Last year, when the administration proposed changes designed to narrow the public’s right to use 401 certifications, Wild Virginia and our members urged the Attorney General to take action. In October of 2019, we called on Mr. Herring to file comments objecting to the proposed regulatory changes and he joined a coalition of states in pointing out that the amendments violate the law.

The EPA ignored those objections from state officials and the public’s comments and finalized the rule so, in June, we again asked the Attorney General to step up – to follow through on the objections he’d previously expressed. And again, Mr. Herring has now acted, joining Attorneys General from across the country in a strong court challenge.

In doing so, he stated:

“Virginia has the right and responsibility to review proposed projects to ensure they will not harm our environment and dirty our waters…The Trump Administration’s rule unlawfully restricts the ability of states like Virginia to even review, let alone impose important conditions and environmental protections, on projects that could cause harm to the Commonwealth’s lakes, rivers, and streams. We will defend our waters and our rights against this unlawful rule.”

According to David Sligh, Wild Virginia’s Conservation Director, “It was extremely important for states to take a lead in challenging this damaging rule through the lawsuit.” He said, “Because state governments have the duty and authority to carry out these provisions, they are particularly well positioned to bring a strong challenge.”

“We do not hesitate to tell government officials what we expect of them, said Sligh, “or to criticize them when we think they’re wrong. But it is also important that we acknowledge and support positive action by these same officials, and we think that’s appropriate in this case. We intend to keep insisting that Virginia use all of its authority to protect our waters, from pipelines and other threats, and we all need to do what we can to preserve and strengthen that authority whenever we have the chance.”

Stay Involved!

Many of you joined our calls for action in this case and we know that the Attorney General heard your voices. Please continue to follow us and to respond to alerts calling for action to protect our waters, and other related issues. We try hard to educate the public and help you respond effectively.

The best way to stay up to date and informed is to join Wild Virginia or renew your membership here.