AG Mark Brnovich Leads Legal Fight to Ensure Safe Drinking Water after Biden Administration Setbacks

PHOENIX -- Attorney General Mark Brnovich is leading a coalition of attorneys general to hold the Biden Administration accountable for delaying new rules that promote safe drinking water in the United States. The coalition filed a petition for review at the U.S. Court of Appeals for the D.C. Circuit challenging the U.S. Environmental Protection Agency (EPA)’s “Delay Rule” that postpones the Trump Administration’s Lead and Copper Rule Revisions (LCRR).

The LCCR would have strengthened protections against lead and copper in drinking water. Lead is a particularly potent neurotoxin. The brains of children exposed to lead are often permanently damaged and can lead to developmental and behavioral problems.

“While the Biden Administration talks a lot about preserving clean air and water for future generations, they have failed to ensure clean drinking water for our children now,” said Attorney General Mark Brnovich. “This is one pipeline they had better not shut down.”

In January 2021, the EPA finalized regulations that would have enacted more stringent protections (LCRR) against lead under the Safe Water Drinking Act. The LCRR would have imposed a new "trigger level" at 10 parts per billion, which when exceeded would have “require[d] public water systems to initiate actions to decrease their lead levels and take proactive steps to remove lead from the distribution system.”

Shortly before the LCRR was set to take effect on March 15th, the Biden Administration delayed the effective date to June 17, 2021. It then followed with a second delay to December 16, 2021. A third delay is virtually inevitable because the EPA has not promulgated any proposed rule to replace the LCRR.

The “Delay Rule” thus postpones the effective date of important improvements in the regulation of lead in drinking water. Those augmented provisions would have strengthened the protection of U.S. residents (particularly children) against lead in the water that they drink. The crisis in Flint, Michigan, beginning in 2014, is a particularly acute reminder of the dangers posed by lead in drinking water.

Attorney General Brnovich and the coalition argue the “Delay Rule” is unlawful for several reasons. In particular:

  • The Biden Administration's own cost-benefit analysis further reveals that the “Delay Rule” is a bad policy, and will result in adverse health effects that exceed the reduced costs on water system operators. Its own EPA estimated the decrease in benefits (i.e., decreased adverse health impacts) from the delay in the LCRR at $10 million to $29 million, while estimating the decrease in costs from the delay (i.e., decreased compliance costs) at only $8 million to $15 million, at a 3% discount rate. Assuming the Biden Administration’s self-serving numbers are correct, the foregone benefits imposed by the “Delay Rule” still exceed the foregone costs by $2 million to $14 million. The “Delay Rule” is thus arbitrary and capricious.
  • The “Delay Rule” is an illegal attempt to kill the LCRR through serial delays, rather than following the necessary procedures for an outright repeal. As the D.C. Circuit has explained, agencies “may not employ delay tactics to effectively repeal a final rule while sidestepping the statutorily mandated process for revising or repealing that rule on the merits.” But that is precisely what the “Delay Rule” is attempting to do.

Joining Attorney General Brnovich are the attorneys general of Louisiana, Ohio, Oklahoma, and Texas.

A copy of the coalition’s filing can be found here.