The Environmental Protection Agency finalized a rule on Monday restricting states’ authority over Clean Water Act permits for fossil fuel pipelines and other infrastructure projects.
The new rule, first proposed last August, sets a strict one-year deadline for states and tribes to certify or deny permits to build pipelines. It also narrows the scope of what effects states can consider when assessing proposals to water quality alone, prohibiting regulators from factoring in a project’s impacts on climate change.
In a half-hour call with reporters on Monday afternoon, EPA Administrator Andrew Wheeler accused states of “holding energy infrastructure projects hostage” and “trapping projects in a bureaucratic groundhog day in hopes that investors become frustrated and end the development.”
“Today’s action puts an end to this abuse of the Clean Water Act,” he said.
But former career EPA officials said the rule change is a naked attempt to tilt the application process in favor of fossil fuel companies, and flies in the face of decades of Supreme Court rulings on Section 401 of the Clean Water Act.
The decision amounts to what many see as a fresh assault on states’ rights to regulate pollution, marking yet another example of the Trump administration flipping Republican orthodoxy on environmental federalism on its head.
Wheeler singled out New York’s decision last month to reject a permit to build the Northeast Supply Enhancement project ― a controversial fracked gas conduit better known as the Williams Pipeline ― under Lower New York Bay as an example of a state violating the spirit of the law.
The statute as it existed previously required states to grant or deny permits in a “reasonable” amount of time within one year. For infrastructure projects in a fixed geographical area, such as a dam, the process could take just a few months.
But pipelines ― like the Williams Pipeline, which aimed to carry gas from the fracking fields of western Pennsylvania to homes in New York City and beyond ― “might cross 20, 30, 40 streams, and each stream requires permits,” said Mark Ryan, who specialized in Clean Water Act enforcement and permitting during his 24 years as the former EPA regional counsel for the Seattle area.
“With these very, very complex permits like with pipelines, the states will say, ‘OK, we want more information … but we don’t want to deny certification, but you have to withdraw the permit application,’” he said. “This new rule says states can’t do that.”
That means states must either grant or deny permits within 12 months or the EPA will deem the state permit waived. This incentivizes pipeline companies to withhold information states would need to fully assess a projects’ impacts on water “to try to force the state to certify the permit,” Ryan said.
At a moment when states are facing steep budget gaps due to the massive, unexpected cost of responding to the coronavirus pandemic, states have even fewer resources than before to carry out swift and comprehensive environmental impact reviews. But denying permits because the state did not have enough time to complete its review would prompt companies to sue, opening the door to costly litigation.
Wheeler sees it differently. He accused states like New York, which tentatively denied a permit for the Williams Pipeline last summer but allowed the company to reapply, of using the previous previous rule “as an excuse to veto a project without vetoing it.”
When HuffPost asked why he believed state regulators would do so arbitrarily, he said: “I don’t know why they would do that.”
It’s unclear how much difference the rule change will make. Corporate analysts told The Wall Street Journal that states still have broad authority to slow permit reviews under the Clean Water Act and other statutes.
The new rule is also likely to face legal challenges, particularly to the guidelines that require states to limit concerns to water quality alone.
Opponents of the new rule are likely to cite two Supreme Court decisions on the law. In 1994, the court ruled 7-2 that Washington state regulators acted within the law by requiring a dam to set a minimum downstream flow of water to maintain salmon and other fish populations. A unanimous 2006 ruling over a dam project in Maine affirmed states’ authority to rule broadly on section 401.
“We believe this is fully in line with the Supreme Court decision,” Wheeler said of the new policy.
Yet the new rule seemed to some observers out of step with the administration’s expressed desire to return regulatory power to states wherever possible.
“The initiative that the administration took here is pretty unusual for an administration that says it wants to give deference to the states,” said Stan Meiburg, a former acting deputy EPA administrator who spent 39 years at the agency. “It suggests they only want to give deference to the states when that deference will be exercised in conjunction with their priorities.”
Wheeler has explicitly said as much. Over the past two years, the agency has waged a public battle with California regulators, seeking to revoke the Golden State’s right under the Clean Air Act to set its own standards for carbon dioxide emissions from vehicle tailpipes. The White House finalized its plans in March to weaken car emissions rules last month, despite California’s opposition.
Before that, the Department of the Interior proposed — then, amid outcry, later walked back — a sweeping new offshore drilling plan to open most of the Arctic, Atlantic and Pacific coasts to oil exploration. The administration similarly slashed the size of public monuments, despite overwhelming opposition from the public and tribes to the proposal.
“There’s not an ideological push here, there’s just, ‘We’re going to do whatever industry wants, and if Obama did anything, it’s bad and we’ll undo it,’” Christine Todd Whitman, who was the EPA administrator from 2001 to 2003 under former President George W. Bush, told HuffPost in 2018. “I don’t think the president has thought through what used to be a basic principle of Republicans, and that’s states’ rights.”
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