Editor’s Note: This article was published as part of the inaugural edition of The Commonwealth Times and reflects events as reported at the time of the referenced news coverage.
The presumption that deregulation is the native tongue of Republican governance met its sharpest rebuke in years this week, as attorneys general from no fewer than nine Republican-led states filed a joint legal challenge against the Environmental Protection Agency’s sweeping rollback of clean water protections — a rollback undertaken, with considerable irony, by an administration those same states helped elect. The lawsuit, filed in the United States District Court for the District of Nebraska, contends that the EPA’s revised rules governing the scope of the Clean Water Act have so thoroughly gutted federal jurisdiction over navigable waters, tributaries, and wetlands as to leave state waterways functionally unprotected and impose upon state governments an unfunded regulatory burden that Congress never authorized.
The coalition, led by Nebraska Attorney General Michael Hilgers and joined by the attorneys general of Iowa, Kansas, Louisiana, Arkansas, North Dakota, Idaho, Montana, and Wyoming, frames its complaint not as an environmentalist brief but as a question of federalism, statutory interpretation, and the practical economics of water management. The states argue that the EPA’s 2025 rule — which narrowed the definition of ‘waters of the United States’ to exclude ephemeral streams, isolated wetlands, and certain agricultural drainage systems — violates the text of the Clean Water Act by abdicating a regulatory mandate that Congress assigned to the federal government, not to the states. In so doing, the complaint alleges, the agency has not merely deregulated; it has shifted enormous costs and liabilities onto state environmental agencies that lack the funding, personnel, and legal frameworks to fill the vacuum.
The legal architecture of the challenge is built upon a foundation that will surprise those accustomed to the simplistic left-right cartography of environmental litigation. The states do not invoke the precautionary principle or appeal to ecological stewardship in the abstract. They invoke instead the Commerce Clause, the Administrative Procedure Act, and the doctrine of cooperative federalism that has undergirded the Clean Water Act since its passage in 1972. The argument, stripped to its structural steel, is this: Congress created a system in which the federal government establishes baseline protections for the nation’s waters while states retain the authority to impose stricter standards; the EPA’s rollback does not liberate the states but rather abandons them, leaving waterways that cross state boundaries subject to a patchwork of inconsistent regulations — or, in some cases, no regulation at all.
At the heart of the dispute lies the aftermath of the Supreme Court’s 2023 decision in Sackett v. Environmental Protection Agency, which significantly narrowed the reach of the Clean Water Act by holding that wetlands must have a continuous surface connection to navigable waters to fall under federal jurisdiction. The EPA’s subsequent rulemaking, finalized in the autumn of 2025, went considerably further than Sackett required, eliminating protections for categories of waters that even the Court’s conservative majority had not addressed. It is this overreach of deregulation — a phrase that itself captures the paradox at the center of the case — that the plaintiff states identify as the agency’s fatal legal error.
Nebraska’s Hilgers, in a statement accompanying the filing, put the matter in terms that would resonate in any courthouse or statehouse west of the hundredth meridian. ‘Water is the foundation of our agricultural economy,’ he said. ‘When the federal government walks away from its responsibility to protect interstate waterways, it doesn’t free Nebraska — it exposes Nebraska. Our farmers, our ranchers, and our municipalities depend on clean water, and they depend on a federal regulatory framework that prevents upstream polluters in other states from fouling our rivers and aquifers.’ The statement reflects a reality that ideological purity often obscures: for agricultural states, clean water regulation is not an abstraction but a matter of economic survival. The Ogallala Aquifer, the Platte River system, and the Missouri River Basin are not scenic amenities; they are the circulatory system of a multi-billion-dollar agricultural economy.
The legal complaint runs to ninety-three pages and details, with considerable specificity, the practical consequences of the EPA’s rule. In Iowa, the removal of federal protections from ephemeral streams has left tributaries of the Des Moines River without enforceable water quality standards during periods of low flow, precisely when agricultural runoff concentrations are highest. In Louisiana, the exclusion of isolated wetlands from federal jurisdiction threatens to accelerate coastal erosion in a state that has already lost more than two thousand square miles of wetland since 1932 — land that serves as a natural buffer against hurricane storm surge. In Montana and Idaho, the rollback has created uncertainty regarding the regulatory status of headwater streams upon which the trout fisheries central to both states’ tourism economies depend.
The broader significance of the case extends well beyond the specific provisions at issue. It represents a fracture within the conservative legal movement over the meaning and limits of the so-called deregulatory agenda. For two generations, Republican attorneys general have challenged federal environmental regulations as overreach — filing suits to block the Obama administration’s Waters of the United States rule in 2015, challenging the EPA’s Clean Power Plan, and joining industry groups in opposing methane emission standards. The present lawsuit inverts that pattern entirely. Here, the argument is not that the federal government has done too much, but that it has done too little — and that in doing too little, it has violated the same principles of statutory fidelity and administrative restraint that conservatives have long championed.
Legal scholars have noted the potential doctrinal significance of the states’ Administrative Procedure Act claims. The complaint argues that the EPA’s 2025 rule is ‘arbitrary and capricious’ under Section 706 of the APA because the agency failed to adequately consider the rule’s impact on state regulatory capacity, ignored its own scientific advisory board’s findings regarding the hydrological connectivity of ephemeral streams and isolated wetlands, and provided no reasoned explanation for departing from forty years of regulatory practice. If the court accepts this framing, it would establish an important precedent: that the APA’s requirement of reasoned decision-making constrains deregulation no less than regulation, and that an agency cannot simply erase protections without confronting the factual record that justified them.
The EPA, for its part, has signaled that it will vigorously defend the rule. A spokesperson for the agency characterized the 2025 revisions as ‘a faithful implementation of the Supreme Court’s guidance in Sackett’ and described the states’ lawsuit as ‘a misreading of both the decision and the agency’s statutory mandate.’ Industry groups, including the American Farm Bureau Federation and the National Association of Home Builders, have generally supported the rollback as a necessary correction to decades of federal overreach, though the Farm Bureau’s response to the lawsuit was notably muted — a reflection, perhaps, of the awkwardness of opposing a coalition of agricultural states on a question of agricultural water quality.
The case is expected to proceed on an expedited schedule, given the ongoing implementation of the contested rule. The plaintiff states have requested a preliminary injunction that would restore the prior regulatory framework while the litigation proceeds — a request that, if granted, would effectively reinstate federal protections for millions of acres of wetlands and thousands of miles of waterways across the country. The district court’s ruling on that motion, expected within sixty days, will offer the first indication of how the judiciary views this remarkable collision between deregulatory ambition and the practical demands of governance.
What is unfolding in the District of Nebraska is, at its core, a contest over a question that has defined the American republic since its founding: not whether government should act, but which government must act, and what happens when the government charged with acting refuses to do so. The plaintiff states have answered that question with a clarity that transcends party affiliation. The water does not know which party controls the statehouse. The river does not consult the platform. And when the federal government retreats from its duty, it is the states — and the citizens who drink, farm, and build upon their waterways — who bear the cost.