Builders' Lawsuit To Kill Arizona Water Supply Regulations Reveals A State Level Strategy To "Dismantle The Administrative State"
NJ Environmental Laws Are Vulnerable To Similar Challenge
Legislators Urged To Shield NJ Laws From The Trump Dismantling
You don't have to be a lawyer to see what is going on. None of this is a secret. The strategy is right out in the open and successfully has been underway for several years.
It is equally obvious that Democrats and environmental groups have been very slow to respond.
Trump and right wing corporate interests have long sought to "dismantle the administrative state", and the Trump administration is now in the process of doing so through a series of illegal Executive Orders.
One of the legal tools that they have used to block environmental (and other) regulations are lawsuits in federal courts which wind their way to the right wing US Supreme Court. The Supreme Court has struck down many critical EPA regulations on climate, clean air, and clean water.
To kill these regulations, the current Supreme Court has relied on reinterpretations of legal doctrines and precedents, including reversal of "Chevron deference" to administrative agencies; revival of the pre New Deal "non-delegation doctrine"; and manufacture of a new "major questions" doctrine.
The Supreme Court, in 2022, used the "major questions" doctrine to kill EPA climate regulations (West Virginia v. EPA, 142 S. Ct. 2587 (2022) (a federal District Court struck down EPA environmental justice regulations on that basis was well).
It now looks like the same corporate interests and right wing legal attacks are being deployed at the State level.
A lawsuit just filed by developers in Arizona against State water supply regulations illustrates that strategy in action, see: HOME BUILDERS ASSOCIATION OF CENTRAL ARIZONA vs. ARIZONA DEPARTMENT OF WATER RESOURCES
The Arizona water supply regulations require that developers demonstrate adequate water supply to meet the water demand of new development. These kind of regulations should have been enacted decades ago, because common sense says you don't build in the desert where there's no water, see:
NJ DEP long has had similar regulations, pursuant to the 1981 NJ Water Supply Management Act.
The Arizona Builders legal attack asserts claims that echo federal attacks on the "administrative state" that rely on the "major questions" doctrine (emphases mine):
"12....... [the regulation] is not specifically authorized by statute, and that is therefore invalid under Arizona law. See, e.g., A.R.S. § 41-1030.
13. Neither of the Invalid Assured Water Supply Rules is specifically authorized by statute as required by Arizona law.
14. This challenge is brought pursuant to the Arizona Administrative Procedure Act (“APA”), A.R.S. Title 41, Chap. 6.
[15. - 59]
60. On January 13, 2025, Arizona Governor Katie Hobbs, in her State of the State address, discussed her assured water supply program and stated, “As I said when Istood before you last year, we must act now to protect Arizona’s water. And when the Legislature did not, I did. … [M]ark my words, if this Legislature fails to act. I will … Again,” or words to that effect. Transcript: Governor Hobbs 2025 State of the State Address, Office of Gov. Katie Hobbs (Jan. 13, 2025).2
Very few, if any, NJ State environmental laws “specifically authorize” specific NJ DEP regulations. Instead, the NJ laws delegate broad power to DEP to use their expertise to flesh out broad legislative goals, vague standards, and policies. Similarly, NJ’s Administrative Procedure Act is silent on these questions. Thus, NJ DEP regulations (and many others) are highly vulnerable to attack under the “major questions” doctrine.
As I just wrote to warn NJ Legislators (Senate Environment Committee Chairman Bob Smith and members of his Committee):
Although NJ courts have not currently embraced this right wing "major questions" doctrine, the future is up for grabs. It is almost certain that such legal attacks will be filed in NJ. NJ's environmental laws are vulnerable to this kind of legal challenge.
Accordingly, to preempt this kind of attack, I strongly urge you to enact legislative amendments to the NJ Administrative Procedure Act.
I'm not holding my breath for them to move a bill, but maybe the Trump assault has at least woken them up! (no pun intended).