Environment

States call for higher benchmarks for Green Guides standards on environmental advertising to prohibit deceptive marketing to consumers

OAKLAND – Attorney General Rob Bonta today co-led a multistate coalition in submitting comments urging the Federal Trade Commission (FTC) to strengthen its Guides for the Use of Environmental Marketing Claims, or “Green Guides,” which states like California use to hold marketers accountable and protect consumers. In a letter sent to FTC Chair Lina Khan, Attorney General Bonta was joined by 15 attorneys general in calling for updates to the federal Green Guides to bolster consumer protection laws against advertising that overstates environmental benefits, often called “greenwashing.” 

“California is a leader in reducing waste, enacting environmental laws with the highest standards, and protecting and preserving our precious natural resources. FTC’s Green Guides must be updated and strengthened to better ensure individuals and businesses can base their consumer decisions on accurate information,” said Attorney General Bonta. “We are urging the federal government to go even further in developing strong standards to protect people from misleading information and to establish a stringent baseline for environmental marketing claims.”

The Green Guides were first developed in 1992 by the FTC to hold marketers accountable for deceptive marketing claims under state consumer protection laws. The Green Guides are an essential tool in public and private efforts to address critical environmental issues by helping to ensure that consumers are not misled when making purchasing decisions based on products and services’ environmental benefits.

The states recommend continuing to publish, clarify, and strengthen the Green Guides. The multistate coalition advises the FTC to expand the scope of the Green Guides to consider how the standards for each environmental marketing claim could be clarified and strengthened to better ensure they are supported by real environmental benefits. Additionally, the states argue that the Green Guides should not preclude states and localities from enacting stronger standards.

More specifically, the states advise that the following be included in updated guidance: 

• Voluntary carbon offsets should ensure a reduction in GHG emissions that is additional to any reduction that would likely have occurred without the purchase of the offset.
• The definition of “compostable” should incorporate both scientific standards and the known practical limitations of composting at scale.  
• FTC should make explicit that “recyclable” means what the FTC has intended it to mean and what consumers understand it to mean: that when the consumer properly disposes of a “recyclable” item, it is actually recycled as a matter of course.
• A renewable energy claim should be underwritten by actual environmental benefit, wherein marketers who make renewable energy claims must actually procure and use renewable energy.

In filing the comment letter, Attorney General Bonta was joined by the attorneys general of Connecticut, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Wisconsin, and the District of Columbia.

A copy of the comment letter can be found here.

SACRAMENTO – California Attorney General Xavier Becerra, co-leading a coalition of 20 attorneys general, filed a comment letter opposing the Trump Administration’s proposed rule to undercut implementation of the National Environmental Policy Act (NEPA). The proposal by the Council on Environmental Quality (CEQ) would curtail requirements under NEPA that federal agencies review and assess the impact of their actions on the environment. The proposal would weaken implementation of one of the nation’s preeminent tools for combatting environmental harms, safeguarding public health, and protecting communities from pollution. In their comment letter, the coalition argues that the proposed changes to NEPA’s regulations are unlawful, unjustified, and should be withdrawn.  

“The Trump Administration is rewriting the law in order to fast-track projects that pollute our air and water,” said Attorney General Becerra. “NEPA was enacted to provide a critical check on federal actions in our backyard. My office stands ready to fight against the Trump Administration’s attempt to open countless loopholes for polluters to avoid any NEPA analysis. At the California Department of Justice we will continue to fight for a clean, healthy, and safe environment for all Californians.”

Enacted in 1969, NEPA is one of the nation’s foremost environmental statutes. NEPA requires that before any federal agency undertakes a “major federal action significantly affecting the quality of the human environment,” it must consider the environmental impacts of the proposed action, alternatives to the action, and any available mitigation measures. Numerous federal actions, from the approval of significant energy and infrastructure projects to key decisions concerning the management of federal public lands, require compliance with NEPA. CEQ’s proposed rule would upend the ability of federal agencies to comprehensively evaluate the impacts of their actions on the environment and public health. 

In the comment letter, the coalition asserts that the proposed rule:

• Violates NEPA and the Administrative Procedure Act;
• Relies on a deficient rulemaking process that shuts out public participation by providing insufficient notice and limited opportunity for public comment;
• Limits the scope of impacts considered in environmental reviews, including the impact of greenhouse gas emissions; and
• Unlawfully and without justification limits the requirement that an agency evaluate reasonable alternatives. 

In August 2018, Attorney General Becerra urged CEQ to carefully consider any changes to NEPA regulations and to prioritize the environment and public health if the Trump Administration chose to move forward with revisions to its guidance.

Joining Attorney General Becerra are the attorneys general of Connecticut, Delaware, Guam, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia.

A copy of the comment is available here.

Under the rule, a large portion of California’s surface waters would be deprived of federal protection

SACRAMENTO – California Attorney General Xavier Becerra today issued the following statement on the Trump Administration’s announcement of a final rule redefining Waters of the United States (WOTUS) under the Clean Water Act to limit the scope of the Act’s protections:

“This irrational, ill-conceived rule is yet another attempt by the Trump Administration to dismantle the critical environmental protections upon which we all rely,” said Attorney General Becerra. “Today’s announcement is an unlawful assault on the Clean Water Act and we’re prepared to take action. California is not interested in going back to the days when backroom deals and dirty water were the norm.”

In April, Attorney General Becerra filed a comment letter urging the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers to withdraw a proposed rule that would significantly narrow Clean Water Act jurisdiction and exclude many of our nation’s waterways from the Act's purview. This change would eliminate federal protections for many of California’s wetlands, rivers, creeks, streams, and tributaries. 

SACRAMENTO - California Attorney General Xavier Becerra, co-leading a coalition of 13 states, filed an amicus brief supporting the State of Rhode Island in its lawsuit State of Rhode Island v. Shell Oil Products Company LLC et al. In the lawsuit, the state seeks to hold oil companies accountable for their actions contributing to climate change and the resulting harms from sea-level rise, changes to the hydrologic cycle, and increased air and ocean temperatures.

“Corporations promoted the use of fossil fuels that accelerate climate change and hurt our coastal states. We support Rhode Island’s action to hold Big Oil accountable for its role in causing our climate crisis and for the costs of cleaning up the damage,” said Attorney General Becerra. “For the sake of our communities’ and our children’s futures, we cannot let polluters off the hook.”

In its suit, Rhode Island alleges that the major fossil fuel producing companies knowingly contributed to climate change and failed to warn regulators and the public about the harms of fossil fuel use. Instead, these companies promoted pseudo-scientific theories and questioned legitimate climate science in order to confuse the public and maintain their profits. The complaint argues that Big Oil should be liable for infrastructure-related damages resulting from their actions.

The case is currently pending in the First Circuit after the oil companies appealed a district court decision that the lawsuit belongs in the state court. In the brief, the coalition asserts that the district court decision should be affirmed. The coalition argues that:

• States play an important role in addressing climate change and protecting human welfare, including providing a forum to decide cases related to climate change;
• The Clean Air Act recognizes states’ roles in reducing air pollution and does not indicate that the federal courts should have exclusive jurisdiction over cases involving climate change; and
• The defendants’ appeal to transfer the plaintiffs’ claims to federal court, knowing that similar claims have been displaced by Congress, could unjustly deny plaintiffs a remedy for harm.

Attorney General Becerra has filed similar briefs in support of local governments seeking to hold oil companies accountable including: a brief in the U.S. Court of Appeals for the Fourth Circuit in support of the mayor and city council of Baltimore in their lawsuit Mayor and City Council of Baltimore v. BP, et al.; a brief in the U.S. Court of Appeals for the Ninth Circuit in support of the city of Oakland and the city and county of San Francisco in their lawsuit, City of Oakland and City and County of San Francisco. v. BP, et al.; a brief in the U.S. Court of Appeals for the Ninth Circuit in support of the counties of Marin, San Mateo, Santa Cruz, and the cities of Imperial Beach, Richmond, and Santa Cruz in their lawsuit, County of San Mateo et al. v. Chevron Corporation; and a brief in the U.S. Court of Appeals for the Second Circuit in support of New York City in its lawsuit, City of New York. v. Chevron Corporation, ConocoPhillips, Exxon Mobil Corporation, Royal Dutch Shell PLC, BP PLC.

Joining Attorney General Becerra and Massachusetts Attorney General Maura Healey in filing the brief are the attorneys general of Connecticut, Delaware, Hawaii, Maine, Maryland, Minnesota, New Jersey, New York, Oregon, Vermont, and Washington.

A copy of the brief can be found here. 

SACRAMENTO – Attorney General Becerra, leading a multistate coalition, filed comments today opposing the U.S. Forest Service’s (Forest Service) proposed rule exempting Alaska’s Tongass National Forest (Tongass) from the national Roadless Area Conservation Rule (Roadless Rule). Exempting Tongass from the Roadless Rule — which prohibits certain road construction and timber harvesting in national forests —  would remove critical protections from 9.2 million acres of land. The proposal would open up millions of acres to development, endangering important fish and wildlife and undermining state efforts to mitigate the impacts of climate change.

"‘Cause I said so’ has never constituted sustainable legal or rational federal policy. Yet, that’s the essence of the Trump Administration’s reasoning for exposing millions of acres of environmentally sensitive and vital public lands and wildlife to exploitation in the Tongass National Forest,” said Attorney General Becerra. “At this critical juncture in humankind’s fight to sustain a habitable planet, we must protect public lands and the fish and wildlife that reside within them if we expect to preserve our own species. We urge the Trump administration to withdraw its dangerous proposal to radically and inexplicably change the management of the Tongass National Forest.”

The Tongass National Forest is a largely untouched remnant of a vast temperate rainforest that once stretched along the Pacific Coast from Alaska to northern California. The forest has remained relatively undeveloped as a result of the Forest Service’s 2001 Roadless Rule prohibiting the construction or reconstruction of roads and the harvesting of timber in certain areas of National Forests. The Trump administration’s expansive proposal would transform land management of Tongass, opening up millions of acres to development and damaging the forest’s capacity to absorb and store carbon dioxide. As a nationally significant carbon sink and home to a number of vulnerable fish and wildlife species, Tongass is a vital resource that deserves federal protection.

In the comment letter, the attorneys general assert that the Forest Service has failed to provide a rational explanation for exempting Tongass from the Roadless Rule. The Ninth Circuit considered and rejected an exemption for Tongass in 2001, and the Service has not provided any new adequate reasons for abandoning protections in the area. The coalition also argues that the draft environmental impact statement (EIS) fails to rationally assess the environmental impacts of the Tongass exemption, particularly the impact of opening up millions of acres to new logging.

The coalition further asserts that the Forest Service’s proposal unlawfully:

• Postpones the evaluation of certain impacts until particular projects are proposed;
• Discounts the potential climate impacts of logging despite scientific evidence to the contrary;
• Claims without evidence or analysis that the rule would have no meaningful impact on fish, wildlife, migratory birds, forest resources or climate; and
• Fails to reinitiate Endangered Species Act consultation on the potential impacts of the exemption on listed species such as the short-tailed albatross, humpback whales, and green sturgeon.

Along with Attorney General Becerra, the coalition filing the comments includes the attorneys general of Illinois, Massachusetts, New York, Oregon, and Washington.

A copy of the comments can be found here.

SACRAMENTO – California Attorney General Xavier Becerra, as part of a multistate coalition, filed a comment letter to the Department of Transportation in support of the State of Washington and in opposition to an attempt by North Dakota and Montana to preempt Washington laws that create a limit on the level of vapor pressure allowed when transporting highly-flammable crude oil by freight rail. These trains are often known as “bomb trains” because of the high intensity fires and violent explosions that can result from accidents and derailments. These trains travel through California, passing through both highly populated communities and areas adjacent to California’s most sensitive ecological areas. The states assert that Washington’s rules are both permissible and necessary in light of the risks of crude-by-rail in Washington and the EPA’s inaction on establishing protective standards, putting communities at risk. 

“States play an important role in protecting the health and safety of their citizens,” said Attorney General Becerra. “Millions of Californians live, work, and attend school within the vicinity of railroad tracks. We can’t afford to wait for the next disaster before taking action on the transport of dangerous and flammable oil moving through our communities. A derailment or explosion in California could put countless lives at risk and cause major damage to our land and waterways. This risk is simply unacceptable.”

California supports Washington’s efforts to protect the public health and safety of its residents and its environment while the federal government dithers over adopting necessary regulations. The attorneys general underscore that their paramount concern will remain protecting the health and safety of citizens, first responders, and the environment within the parameters of the state’s existing authority.

Attorney General Becerra files the comment letter with the attorneys general of New York, Maryland, and New Jersey.

A copy of the comment letter is available here.

SACRAMENTO – California Attorney General Xavier Becerra, leading a coalition of 23 attorneys general with New York Attorney General Letitia James and Washington Attorney General Bob Ferguson, filed a comment letter opposing the U.S. Environmental Protection Agency’s (EPA) proposed rule which would unlawfully curtail state authority under Section 401 of the Clean Water Act. In the Clean Water Act, Congress recognized and preserved states’ broad, pre-existing powers to protect their state waters. EPA has no statutory authority to limit state powers under Section 401. The proposed rule is an unlawful and misguided policy that would degrade water quality and infringe on states’ rights. Consistent with the plain language of the Clean Water Act and the clear legislative intent, EPA’s acknowledgement of state authority spans three decades and four administrations. The proposed rule is a dramatic departure from the prior agency position and the states demand that EPA withdraw it.

“EPA’s proposed rule is yet another reckless attempt by the Trump Administration to weaken Clean Water Act protections for Americans and our nation’s waters,” said Attorney General Becerra. “California has an inherent right under the Clean Water Act to evaluate whether projects comply with state water quality requirements and to deny or impose conditions on federal projects to protect our water resources. This is especially crucial as the Trump Administration continues to sell out our public health and environment for the benefit of polluters and special interests. The EPA must withdraw this unlawful attempt to strip states of their authority to regulate water quality.”

“The Trump Administration’s proposed rule would usurp state and tribal authority to regulate our waters, in violation of the law," said Washington Attorney General Ferguson. "This stunning federal power grab ignores binding Supreme Court precedent, the plain language of the Clean Water Act, and the fact that Washington and other states have successfully implemented clean water programs for half a century. Once again, the Administration has proven that it is willing to place corporate special interests above environmental protection. This time, the Administration is also trying to strip away state and tribal rights to protect waters that the federal government itself refuses to protect. Environmental issues are part of more than half of my office’s 50 cases against the Trump Administration, and more than half of our 24 wins. We haven’t lost a case yet. If the EPA finalizes this unlawful proposal, we’ll have no choice but to explore all legal options to defend Washington’s authority to protect our natural resources.”

In the letter, the coalition asserts that the proposed rule conflicts with the Clean Water Act’s language, Congressional intent, and applicable case law interpreting the Clean Water Act’s language. The proposed rule:

• Unlawfully limits the scope of state certification authority only to certain types of discharges;
• Illegally restricts state conditions on Section 401 certifications to a narrow set of EPA-approved water quality standards;
• Purports to authorize federal agencies to illegally disregard state-issued denials and conditions on certification applications; and
• Unlawfully restricts the timing and scope of state review of certification applications.

The EPA’s unlawful action is the product of President Trump’s April 2019 Executive Order issued to undermine state authority and not to protect water quality. The proposed rule violates the Administrative Procedure Act because it is contrary to law, arbitrary and capricious, and an abuse of discretion. The rule violates the plain language of Section 401 of the Clean Water Act. Moreover, the EPA fails to consider any water-quality related factors in its decision, fails to explain why it is changing its position from the prior Section 401 regulations and guidance, and fails to analyze the effects of the proposed rule on the states. Because the rule conflicts with Section 401 and limits state authority, EPA does not have the authority to issue it.

Attorney General Becerra stands strong to protect state authority to regulate water quality under the Clean Water Act. In April 2019, Attorney General Becerra joined a multistate comment letter to the U.S. Army Corps of Engineers, objecting to its directive to weaken state oversight of projects impacting water quality. The following month, he filed a comment letter warning the EPA that any attempt to roll back state oversight of federal protects would be unlawful. In July, Attorney General Becerra denounced the EPA’s guidance to limit state involvement in the permitting of federal projects under Section 401 of the Clean Water Act. In September, Attorney General Becerra filed a lawsuit against the EPA for its determination excluding the Redwood City Salt Ponds from Clean Water Act protections.

Attorney General Becerra filed the comment letter with the attorneys general of New York, Washington, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Wisconsin, Virginia, and the District of Columbia.

A copy of the comment letter on the EPA’s proposed rule can be found here.

SACRAMENTO — California Attorney General Xavier Becerra, leading a coalition of 13 attorneys general and the City of New York, filed a comment letter calling on the Department of Energy (DOE) to withdraw its proposed rule to undermine current energy efficiency standards for residential dishwashers. The proposed rule, issued at the request of the Competitive Enterprise Institute, attempts to carve out a class of dishwashers from energy efficiency standards by creating a new, unnecessary category of dishwashers defined only by shorter cycle times. Attorney General Becerra and the coalition assert that the proposal is unlawful, hurts consumers and the environment, and is not supported by any factual need. The proposal’s correlation between cycle time and energy use is contradicted by evidence, with longer wash cycles being driven by other factors including changes in detergent formula and consumer preference for quieter machines.

“This is a sham proposal. DOE is doing the bidding of a dogmatically anti-rules institution to undermine cost-saving standards at the expense of hardworking families and businesses,” said Attorney General Becerra. “We will defend energy efficiency standards and technologies. They are our present and our future, and they benefit Californians and our environment.”

The Energy Policy and Conservation Act (EPCA) directs DOE to establish energy conservation standards covering most major household products, including dishwashers. Dishwashers have been subject to energy efficiency standards since 1988 and are currently required to use no more than 307kWh/year and 5.0 gallons per cycle, a requirement which saves energy and helps households save money. DOE’s energy efficiency program has resulted in substantial economic and environmental benefits: by 2030, DOE projects the program will have resulted in more than $2 trillion dollars in cumulative utility bill savings for consumers and 2.6 billion tons in avoided carbon dioxide emissions. However, under the Trump Administration, the DOE continues to put the interest of the fossil fuel industry over the American people by failing to undertake mandatory rulemakings and instead pursuing legally and technologically unsound actions that would undermine the program. This proposal is no different. 

The coalition urges DOE to withdraw its unlawful proposal on the basis that the proposal:

• Violates EPCA’s anti-backsliding provision prohibiting DOE from enacting a standard that increases energy use of a covered product. The current classes of dishwashers under the law are not limited according to cycle time, and DOE is not authorized to add a class simply to bypass the law;
• Attempts to improperly avoid review of the environmental impacts of the proposed rule as required by the National Environmental Policy Act; and
• Fails to provide sufficient justification or reasoning as required by the EPCA and the Administrative Procedure Act that different energy efficiency standards are necessary to maintain a shorter cycle in dishwashers and that this function would be a performance-enhancing feature. In fact, the proposal’s correlation between cycle time and energy use is contradicted by evidence, with longer wash cycles being driven by other factors including changes in detergent formula and consumer preference for quieter machines.

Attorney General Becerra leads a coalition including the attorneys general of Connecticut, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, Oregon, Vermont, Washington, and the District of Columbia; and the City of New York.

A copy of the comment letter is available here. 

Over 300 species are listed as endangered or threatened in California

SACRAMENTO – California Attorney General Xavier Becerra, leading a coalition of 18 attorneys general and the City of New York, today filed a lawsuit challenging the Trump Administration’s rollback of the Endangered Species Act. Attorney General Becerra leads the lawsuit — filed in the U.S. District Court for the Northern District of California — with Massachusetts Attorney General Maura Healey and Maryland Attorney General Brian Frosh. The challenge argues that the U.S. Fish and Wildlife Service and the National Marine Fisheries Service's decision to finalize three rules that undermine the key requirements and purpose of the Endangered Species Act is unlawful.

“California is home to hundreds of endangered and threatened species, and wildlife that owes its continued existence to the Endangered Species Act, including the iconic bald eagle,” said Attorney General Becerra. “As we face the unprecedented threat of a climate emergency, now is the time to strengthen our planet’s biodiversity, not to destroy it. The only thing we want to see extinct are the beastly policies of the Trump Administration putting our ecosystems in critical danger. We’re coming out swinging to defend this consequential law – humankind and the species with whom we share this planet depend on it.”

For over 45 years, the Endangered Species Act has protected thousands of iconic and threatened species, including the bald eagle, California condor, grizzly bear, and humpback whale. Enacted under the Nixon Administration in 1973, the ESA is intended “to halt and reverse the trend toward species extinction, whatever the cost.” The Trump Administration’s rules would dramatically weaken current protections and reduce federal Endangered Species Act enforcement and consultation, putting these endangered species and their habitats at risk of extinction.

In California, there are over 300 species listed as endangered or threatened under the Act – more than any other mainland state. Additionally, California has tens of millions of acres of federal public lands subject to consultation requirements under the Endangered Species Act.

In the lawsuit, the coalition challenges the rules as arbitrary and capricious under the Administrative Procedure Act, unauthorized under the Endangered Species Act, and unlawful under the National Environmental Policy Act. Of specific concern are the U.S. Fish and Wildlife Service and the National Marine Fisheries Service actions to:

• Inject economic considerations into the Endangered Species Act’s science-driven, species-focused analyses;
• Restrict the circumstances under which species can be listed as threatened;
• Expand the Act’s narrow exemptions for designating critical habitats and limit the circumstances under which a habitat would be designated, especially where climate change poses a threat;
• Reduce consultation and analyses required before federal agency action;
• Radically depart from the longstanding, conservation-based agency policy and practice of providing the same level of protection to threatened species afforded to endangered species, which is necessary to prevent a species from becoming endangered;
• Push the responsibility for protecting imperiled species and habitats onto the state, detracting from the states’ efforts to carry out their own programs and imposing significant costs; and
• Exclude analysis of and public input on the rules' significant environmental impacts.

Attorney General Becerra has taken strong steps to protect our wildlife and habitats and has doggedly fought the Trump Administration’s attempts to roll back protections. In September 2018, Attorney General Becerra filed a comment letter on the Trump Administration’s plan to gut the Endangered Species Act, which was followed by a strong statement issued when the rule was finalized in August 2019. Also in September 2018, Attorney General Becerra filed a lawsuit challenging the Trump Administration’s decision to withdraw protections for America’s migratory birds, by rolling back provisions of the Migratory Bird Treaty Act (MBTA). Just two months later, the California Department of Justice and the California Department of Fish and Wildlife released a legal advisory regarding the MBTA affirming that, despite any federal reinterpretation of the MBTA by the federal government, California would continue to enforce robust protections for migratory birds.

A copy of Attorney General Becerra's lawsuit challenging the Trump Administration's rollbacks of the Endangered Species Act can be found here.

SACRAMENTO – California Attorney General Xavier Becerra today filed a lawsuit in the U.S. District Court for the Northern District of California challenging the Environmental Protection Agency’s determination that 1,365 acres of salt ponds in Redwood City (Salt Ponds) are not “waters of the United States” under the Clean Water Act. The Salt Ponds – an area adjacent to the San Francisco Bay and containing tidal channels and impoundments of bay waters – have been identified as a key area for restoration to improve the Bay ecosystem and to provide resiliency against sea level rise. EPA's decision, made at the request of developers, would allow this area to be built upon without the protections afforded by the Clean Water Act. In the lawsuit, Attorney General Becerra declares this action as unlawful under the Administrative Procedure Act.

“The Trump Administration continues to endanger California’s efforts to protect our environment and public health,” said Attorney General Becerra. “It’s a sad day when the country’s ‘environmental protection agency’ looks at San Francisco Bay and doesn’t see a body of water that it should protect. We should restore the Bay, not build on top of it. This unlawful proposal is simply an attempt by the EPA to overlook its obligation to protect our nation’s waters in order to fast track development. President Trump, California’s precious San Francisco Bay is not for sale.”

Today’s lawsuit challenges EPA’s determination as unlawful because it is contrary to the Clean Water Act and EPA's own regulations implementing that statute, it arbitrarily ignored an extensive analysis prepared by EPA Region 9 in 2016 which concluded that the Salt Ponds are “waters of the United States” for several independent reasons, and it failed to consider relevant facts and evidence. 

Attorney General Becerra asserts that the EPA’s decision deprives California of the ability to conduct review of potential projects on the site as required by Section 401 of the Clean Water Act and undermines California’s interests in wetlands restoration. By removing the requirement to obtain a permit for dredge and fill activities, it makes urban development of the Salt Ponds more feasible and likely.

In the complaint, Attorney General Becerra asserts the EPA’s jurisdictional determination:

• Is contrary to the Clean Water Act, EPA's implementing regulations, and applicable case law by concluding that the site is dry, solid upland rather than “water” for Clean Water Act purposes;
• Ignores or fails to evaluate pertinent facts and evidence demonstrating the Salt Ponds are “waters of the United States,” including that the Salt Ponds were part of the traditionally navigable waters of San Francisco Bay, are navigable in fact, and retain a significant ecological connection to the Bay;
• Deprives California of its ability to conduct review of potential projects on the site as required by Section 401 of the Clean Water Act; and
• Undermines California’s ability to restore Bay wetlands and provide resiliency against sea level rise by removing permitting requirements for dredge and fill activities, and making development more feasible and likely.

A copy of Attorney General Becerra's lawsuit against the EPA is available here.