The new rule would set a one-year deadline for states and tribes to certify or reject proposed projects — including pipelines, hydroelectric dams and industrial plants — that could discharge pollution into area waterways. It also would limit any reviews to include only water quality impacts, based on a more narrow definition the Trump administration finalized last year.
In a call with reporters Monday, EPA Administrator Andrew Wheeler argued that some states had abused the law in the past, using long delays to trap energy-related projects “in a bureaucratic Groundhog Day.” The change would give states “more than enough time” to scrutinize proposed projects, while preventing them from holding them “hostage” for lengthy periods, he said.
“Our system of republican democracy does not allow for one state to dictate standards or decisions for the entire nation,” Wheeler said.
The change stems from an executive order President Trump issued in April 2019, in which he instructed federal agencies to do everything possible to pave the way for energy infrastructure. “The president is very happy about this,” Wheeler said, as he congratulated the agency’s staff for its work on the rule.
Robert Irvin, president of the environmental group American Rivers, said in an interview that the shift would undercut the powers Congress when it passed the Clean Water Act in 1972, at which point it “gave states the authority to do more than the federal government is doing in order to clean up our rivers and have fishable, swimmable waters.”
“This administration is happy to put the responsibility for dealing with the pandemic on the states, but they’re far too quick to strip states of authority when they’re trying to protect rivers and clean water,” Irvin said.
Some companies, however, have complained that certain states have used Section 401 of the Clean Water Act to unnecessarily delay key energy infrastructure projects, including pipelines, coal terminals and hydroelectric dams.
They frequently cite two pipeline projects that encountered obstacles in New York state in recent years: the Constitution natural gas pipeline, which planned to ship gas from Pennsylvania’s Marcellus shale to New York before it was shelved, and the Northeast Supply Enhancement (NESE) Pipeline, which would also have brought gas from Pennsylvania to New Jersey and then onto New York City. The New York Department of Environmental Conservation just denied a permit to the NESE Pipeline last month, based on its “inability to demonstrate” how it would meet all applicable water standards. New Jersey denied its 401 water certification permit a year ago.
Another project that stalled was the Millennium Bulk Terminal, a $680 million coal export facility that Washington state rejected in September 2017.
Robin Rorick, vice president for midstream and industry operations at the American Petroleum Institute, said in a statement that his members support the long-standing environmental law, “though certain states have continued to go well beyond its scope for water quality certifications.”
“We hope the addition of a well-defined timeline and review process will provide certainty to operators as they develop infrastructure projects that meet state water quality standards,” Rorick said.
Sen. John Barrasso (R-Wyo.), who chairs the Senate Environment Committee, said in a statement that the rule would make it easier for his state to sell coal elsewhere in the United States and overseas. “The state of Washington has hijacked this process and blocked Wyoming coal from being exported,” he said.
But Association of Clean Water Administrators Executive Director Julia Anastasio, who represents state water permit administrators in all 50 states, said in a phone interview that the rule doesn’t respect state roles in maintaining water quality and does not address a 1994 Supreme Court ruling empowering them to set “other limitations” that could ensure a project meets “any other appropriate requirement of state law.”
“It’s really not respecting the rule that states play as co-regulators,” Anastasio said.
Both Democratic attorneys general and lawmakers vowed to fight to reverse the rule. Rep. Debbie Dingell (D-Mich.) tweeted, “This decision is unconscionable & I’ll do everything in my power to oppose it.” And California Attorney General Xavier Becerra suggested he and others would sue the EPA, saying in a statement, “We won’t stand idly by as they rip away our authority under the law to preserve water quality.”