The EPA proposed a rule Friday designed to limit blue states’ ability to reject oil and gas pipeline projects.
The proposed rule implements an April executive order from President Trump to rein in state use of Section 401 of the Clean Water Act. That provision of the law allows states to deny permits if leaks from an energy infrastructure project could harm nearby streams or lakes.
“Our proposal is intended to help ensure that states adhere to the statutory language and intent of Clean Water Act,” EPA Administrator Andrew Wheeler said in a statement. “When implemented, this proposal will streamline process for constructing new energy infrastructure projects that are good for American families, American workers, and the American economy.”
EPA’s rule would enforce a one-year deadline for states to deny permits in order to promote the “timely review of infrastructure projects.”
It would also allow federal permitting agencies such as the Federal Energy Regulatory Commission or the U.S. Army Corps of Engineers to determine whether a state’s rationale for certifying or denying a Clean Water Act permit is “consistent with the scope” of the law.
If not, the federal agencies can “set aside” the state’s decision, forcing the state to go to court to overturn the agency ruling while the project is allowed to proceed with construction. Under the current process, the company building the project has the responsibility to file a lawsuit to challenge a state’s rejection of a permit, and is barred from proceeding on construction during the court process.
The Trump administration, Republican lawmakers, and industry representatives argue some states are abusing the authority and rejecting permits for political reasons, as part of a broader opposition to fossil fuel infrastructure due to climate change.
The administration of New York Gov. Andrew Cuomo used its Clean Water Act power to block construction of the 125-mile natural gas Constitution Pipeline from Pennsylvania, despite the project earning approval in 2014 from federal regulators.
In another case cited by industry, Washington state — under Democratic Gov. Jay Inslee, now a 2020 presidential candidate — used its Clean Water Act authority to stop a proposed coal export terminal.
Although states will retain the right to veto projects, absent action from Congress, critics say EPA’s proposed rule undermines the traditional collaboration between states and the federal government in protecting the environment.
Democratic states are likely to sue over the proposed rule change. A coalition of 14 state attorneys general, led by California, filed comments to EPA last month warning the agency that limiting the Clean Water Act administratively would be illegal.
The Democratic attorneys general say the law provides states the primary authority to protect water quality within their borders, allowing for “broad discretion” in making decisions over pipeline certifications, and there should not be “arbitrary and unreasonable” time limits imposed on states’ completing water quality reviews.
“This is a clearly unlawful and arbitrary and capricious move,” said Christopher Gray, spokesman at New York University School of Law’s State Energy and Environmental Impact Center, which works with attorneys general to protect environmental rules. “It’s clear the EPA respects state rights when it comes to deregulating and lowering environmental standards. But they can’t go turn around and say states that set strong environmental standards — as is their right under the law — need to be targeted for federal preemption. That’s the definition of hypocrisy.”
EPA’s issuance of the proposed rule will kick off a 60 day public comment period once it is published in the Federal Register.
