The Trump administration is removing a tool some Democratic states have used to block construction of new fossil fuel infrastructure, such as oil and gas pipelines.
In recent years climate change activists encouraged states and tribes to exercise their power under section 401 of the Clean Water Act. It gives local authorities the right to review new projects to make sure they don’t harm local water.
“So it essentially gives states veto power over federal decisions,” Daniel Estrin, an attorney with the environmental group Waterkeeper Alliance, told NPR in 2018. Typically the Federal Energy Regulatory Commission approves these projects, but activists say the agency has become a “rubber stamp” for fossil fuel industries
New York denied a key water quality permit for a controversial pipeline that would have delivered gas from nearby Pennsylvania to New York City. It had done the same for another pipeline in 2016, a project the builder recently dropped. Washington state denied a permit for a coal export terminal in 2017. And development of a pipeline and liquefied natural gas project in Oregon also has been slowed by the state’s permit denials.
Climate activists want to keep fossil fuels in the ground where they won’t contribute to climate change. Blocking construction of infrastructure, such as pipelines, is one way of doing that. If coal, oil or gas can’t get to market no one will mine or drill for it.
But what climate activists see as a benefit, fossil fuel industries see as abuse.
“We hope that EPA’s action today will help end the abuse of the section 401 permitting process, which has been used to obstruct projects for reasons that had nothing to do with protecting water quality,” said National Mining Association President and CEO Rich Nolan.
Last August, the Environmental Protection Agency announced it would update the rule “to increase the predictability and timeliness of section 401 certification.” It was in response to President Trump’s executive order last year, aimed at speeding up approval processes for energy infrastructure. Trump has expressed skepticism about climate change and he campaigned in 2016 on helping the coal and other fossil fuel industries.
“EPA is returning the Clean Water Act certification process under Section 401 to its original purpose, which is to review potential impacts that discharges from federally permitted projects may have on water resources, not to indefinitely delay or block critically important infrastructure,” says EPA Administrator Andrew Wheeler, who is a former coal company lobbyist.
Wheeler says the new rule will specify timelines for state review and require final action within one year of receiving an application. It also limits the scope of the Section 401 review, directing states to look only at direct effects on local water quality, not larger issues such as climate change.
“The Trump Administration continues to be more interested in handouts for polluting corporations than protecting our drinking water,” said Joan Walker of the Sierra Club after the announcement. The environmental group says in a press release that the new rule “…could force states to approve water permit applications with insufficient data or prematurely grant authority to issue permits to the federal government.”
The Natural Resources Defense Council says the action undermines the foundation of how environmental laws work in the U.S. “The federal government should be setting baseline standards, while states apply and enhance them to the benefit of their unique natural resources and residents,” says Jon Devine, the group’s director of federal water policy.
Oil industry groups wrote a collective comment in support of the proposed changes. “To allow a single state to wield disproportionate power over projects of national importance is intensely problematic,” they said.
American Petroleum Institute Vice President Robin Rorick also said “a well-defined timeline and review process will provide certainty to operators.”
Administrator Wheeler says the new rule applies only to future projects. Environmental groups contend the change is illegal, and expect states to challenge it in court.