“The Clean Water Act is based on the principle of cooperative federalism, which recognizes EPA’s important, yet limited, role in regulating areas traditionally governed under state law,” said Sessions. “As a former federal prosecutor and state attorney general, I believe the Executive Branch has a clear duty to vigorously defend, to the highest level, any lawsuits that seek to compel agency action that is not authorized by law. This letter will hopefully lace focused attention on EPA’s duty to defend the law as passed by Congress. Too often collusive lawsuits and settlements have essentially created law never passed by Congress.”
The two lawsuits in question were brought by the Conservation Law Foundation and the Buzzards Bay Coalition. They allege EPA has a non-discretionary duty under the CWA to regulate pollution of groundwater and to mandate states regulate nonpoint source pollution. However, the CWA provides no authority to EPA to regulate nonpoint sources or groundwater, or to force states to regulate activities that EPA itself has no authority to regulate.
