One of President Trump's biggest energy-related goals is to build more pipelines before he leaves office. But Republicans are concerned the way a piece of half-century-old water pollution law is being used is thwarting those efforts.
So the GOP is launching a double-barreled effort from both the White House and Congress to address a key provision in the Clean Water Act, the nation’s bedrock environmental statute for preventing water pollution.
At issue is the law's Section 401, which gives states the power to disapprove interstate infrastructure projects that they deem potentially harmful to their waterways. Republicans allege that some states— mostly left-leaning ones led by Democrats opposed to increasing the use of coal, oil and natural gas — have abused the provision in recent years to stop the construction of pipelines and other energy infrastructure within their borders.
The tension was on display Wednesday, when Trump flew to oil- and gas-rich Texas to sign an executive order directing the Environmental Protection Agency to review federal rules around states’ ability to issue water permits.
“Too often, badly needed energy infrastructure is being held back by special-interest groups, entrenched bureaucracies and radical activists,” Trump said during a speech this week outside Houston, The Post's Toluse Olorunnipa and Steven Mufson report.
But here's the fine print: “Outdated Federal guidance and regulations regarding section 401 of the Clean Water Act, however, are causing confusion and uncertainty and are hindering the development of energy infrastructure,” Trump’s executive order states.
Trump tasked the agency with tightening the amount of time states have to review water-permit applications as well the “types of conditions that may be appropriate to include in a certification.”
Section 401 says that states must approve or reject projects within a “reasonable period of time (which shall not exceed one year)." In practice, though, projects can last for years in permitting limbo as state-level environmental agencies go back and forth with companies to grapple with technical details.
“These projects that are subject to approval are massive,” said Kimberly Ong, a senior attorney for the environmental group Natural Resources Defense Council, which opposes Trump's executive orders. “They require extremely technical review.”
At the same time this week, the chair of the Senate Environment and Public Works Committee, John Barrasso (R-Wyo.), introduced legislation that goes a step further by etching into law some of those limits.
“The idea is to use the Clean Water Act for something to do with water,” Barrasso said in an interview.
Barrasso praised Trump’s executive order, but wanted to make sure future administrations could not undo it. “You're trying to codify this stuff to make it into law.”
His bill, for example, would limit states to considering only potential pollution from discharges into waterways when reviewing permit applications — and not from other sources.
That would mean the state of New York would not have been able to reject a proposed 124-mile gas pipeline on the grounds that construction would disturb creeks and streams, as the administration of Gov. Andrew M. Cuomo (D-N.Y.) has done.
The state of Washington, similarly, rejected a water permit for export terminals for coal bound for use outside the state. Democratic Gov. Jay Inslee, who is running for president on a plank focused on climate change, denounced Trump’s order as a “dangerous attack” on the environment.
But Trump singled out the pipeline delays in his home state when announcing his administrative action. “We need help with New York,” Trump said. “New York is hurting the country because they are not allowing us to get these pipelines through.”
That pipeline would have helped deliver fracked gas from Pennsylvania’s Marcellus Shale to New England, which often must import liquefied natural gas from abroad during cold winter months.
Yet Trump's executive order may yet still concern some red-state leaders. In a letter before Trump’s announcement, the nonpartisan Western Governors’ Association, which represents 22 governors from 19 Western states and three U.S. territories, warned that overriding state agencies “would inflict serious harm to the division of state and federal authorities established by Congress.”
But it is already earning praise from those in the oil and gas industry, who have pressed for years for New York to stop standing in the way of gas pipelines. “If the systems are used, if you will, to obstruct the development of much-needed infrastructure, then we will push, as I know others will, to make sure there’s certainty and predictability in the process,” said then American Petroleum Industry president Jack Gerard last year, singling out New York.
Some hydroelectric dam proposals have ended up waited for a decade or more for state water permits. Those developers are happy about the new push, too.
Linda Church Ciocci, head of the National Hydropower Association, cheered the order for sending “a clear message today that it is no longer acceptable for our nation’s vital hydropower projects to linger in uncertainty for years — at times, a decade or more — without resolution.”
The water is reversing the usual roles of the two parties, as Democrats find themselves defending states’ right to halt development within their borders and Republicans calling for federal regulators to play a bigger role in dictating state decision-making.
“We will all need to stand by a commitment to this federal-state partnership,” Thomas R. Carper (Del.), the top Democrat on Barrasso's committee, which oversees the EPA, said in a speech earlier this week to state regulators.
“I — and I’m sure you — see many other instances where cooperative federalism and respect for states’ rights doesn’t mean the same thing to this administration as it does to those of you who are actually doing the work of environmental protection.”
Like with other Trump-era environmental rules, some legal experts expect whatever new rules the EPA issues to face significant courtroom challenges on administrative-law grounds.
“There are a number of ways it can be attacked,” said Carl Tobias, a law professor at the University of Richmond. “What Trump wants to do is cut the states out because they’re a pain in the neck.”
For now, though, environmental groups appear to be holding their legal fire until the EPA rolls out actual regulations. Trump ordered the rules to be finalized within the next 13 months.
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— No longer acting: The Senate confirmed former lobbyist David Bernhardt to permanently lead the Interior Department, The Post’s Darryl Fears reports. In a 56-to-41 vote, the Senate promoted Bernhardt who has been leading the agency in an acting capacity since Ryan Zinke resigned in the midst of several ethics investigations. Republicans lauded his long record of pulic service for the Trump and George W. Bush administrations, while Democrats focused on concerns about conflicts of interest due to his previous work as a lobbyist for the oil and gas industry and for large water districts. As The Post has reported, his potential conflicts are so extensive that he carries an index card listing the companies or people he should avoid.
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— House panel launches probe of EPA air chief: The House Energy and Commerce Committee is looking into whether the Environmental Protection Agency’s air policy chief and his deputy have improperly helped former clients since they joined the Trump administration. Both Bill Wehrum, the assistant administrator for the EPA’s Office of Air and Radiation, and his office’s senior counsel, David Harlow previously worked at law firm Hunton & Williams, now called Hunton Andrew Kurth. On Thursday, committee chairman Frank Pallone Jr (D-N.J.), Dianna DeGette (D-Color.) and Paul Tonko (D-N.Y.) sent nine letters to businesses affiliated with the pair. “In letters to the firm as well as eight power companies that belong to the Utility Air Regulatory Group, the lawmakers say that the agenda of Wehrum’s office ‘appears remarkably similar to the substantive agenda advanced’ by the organization that the EPA assistant administrator used to represent in private practice,” The Post’s Juliet Eilperin reports.
— Another Republican working on a Green New Deal alternative: Sen. John Cornyn (R-Tex.) is working with other Republicans on a measure that would combat climate change via “energy innovation,” Bloomberg News reports. Cornyn is one of several Republicans who have gone from either ignoring or outright expressing doubt about the warming globe to acknowledging mainstream scientific consensus over the change, looking now to come up with alternative ideas to the “Green New Deal” pitched by Rep. Alexandria Ocasio-Cortez (D-N.Y.) and Sen. Ed Markey (D-Mass.). “The innovation bill being crafted by Cornyn looks to spur the development of new technologies to capture carbon emitted when natural gas is used to generate electricity,” Bloomberg News reports.
— And a Democrat proposes playbook of more than 50 climate measures: Rep. Scott Peters (D-Calif.) announced a “Climate Playbook” with dozens of bills to boost efforts to tackle climate change. It includes measures on energy research as well as carbon pricing plans and the Green New Deal, E&E News reports. It also includes Rep. Matt Gaetz’s (R-Fla.) Green Real Deal, a counter plan to the Green New Deal. "We cannot wait another two years — nor can we wait for Congress to come to consensus around a single bill," Peters said in a statement. "The Climate Playbook acknowledges this reality."
— The latest on the impasse over disaster spending: As lawmakers prepare to leave Washington for a two-week recess, billions of dollars in disaster aid is still stuck in the muck on Capitol Hill. Republicans insist Democrats are playing politics, while Democrats are chiding Republicans for holding out additional aid to help Puerto Rico’s post-hurricane recovery. “Republicans from hard-hit areas like the flooded Midwest and the storm-ravaged South have grown increasingly frustrated with the Democrats’ stance,” The Post’s Erica Werner reports. “The disagreement has left the two sides at loggerheads with the path forward unclear, even as communities all over the United States struggle to recover from various calamities.”
— Living in a disaster zone: There are hundreds of thousands of people in the United States who live in government-subsidized housing in flood-prone areas. “Much of the nation’s affordable housing stock was built before climate change was well understood, and many properties already sit in flood zones. So the government continues to pay — a strategy that keeps a roof over families’ heads, but potentially leaves them in harm’s way,” the New York Times reports. In Houston, the Department of Housing and Urban Development is facing a lawsuit brought by residents of a neighborhood who say they are stuck in a disaster-prone area. They can’t afford to leave, and their housing vouchers only work in their current hosing complexes, which sit on top of a flood-prone area next to a bayou.
— The Green Apple: The New York City council is set to enact its own ambitious climate policy package. The city council planned to announce the Climate Mobilization Act, HuffPost reports, a set of six measures in an omnibus bill that is expected to be voted on by April 22, which is Earth Day. The key bill in the package is a measure that will mandate buildings over 25,000 square feet install energy efficient windows and insulation. The measure also order landlords to reduce emissions 40 percent by 2030, doubling the reductions by 2050.
— Virginia fishing season may be on the rocks: State officials are considering canceling this year’s fishing season for large rockfish, known as a striped bass, because of the population’s decline. The season begins in the state on April 20 along the Potomac River and its tributaries, and in the bay days later, but The Post’s Dana Hedgpeth reports “indications that the population of the fish, also called striped bass, is declining raised concerns that further catches could have a long-term effect on its survivability.”
— Readiness drills in the Arctic: As Russia is moving to make claims in Arctic territory as the icy barriers between Russia and North America melt, NATO troops have been looking to counter. Last month, soldiers from member countries and partners joined Canadian soldiers for training drills meant in part to help the forces match the readiness of Russian troops in extremely cold climates, the New York Times reports: “Twenty percent of Russia’s gross domestic product is pulled from the Arctic, whether in minerals or through its shipping lanes. It is far ahead of North America when it comes to maneuvering in the region; by comparison, less than 1 percent of the United States’ economic output is derived from the Arctic.”
- The Federal Energy Regulatory Commission holds an open meeting on April 18.
— Meet the 29-year-old woman behind the first image of a black hole: Katherine Bouman, a postdoctoral researcher at the Harvard-Smithsonian Center for Astrophysics, created the algorithm that gave us the first picture of a black hole.