By Valerie Volcovici, Reuters, June 1, 2020
WASHINGTON (Reuters) – U.S. Environmental Protection Agency chief Andrew Wheeler signed on Monday a rule limiting state powers to block energy infrastructure projects, setting up a fight with some Democratic governors who say Washington is stripping their ability to protect their states’ interests and combat climate change.
The move comes as the Trump administration grows increasingly frustrated with left-leaning states like California and Washington that it says have misused their authority under the U.S. Clean Water Act to halt fossil fuel projects like pipelines and coal terminals.
Under the rule, first proposed in August, the EPA will alter Section 401 of the federal water law to make it impossible for a state to block a water permit for a project for any reason other than direct pollution into state waters. It will also set a one-year deadline for states to approve projects.
In the past, states have weighed broader factors, such as climate change, to determine quality and have taken years to make decisions on projects.
New Jersey and New York both denied a 401 permit to the Williams Co. $1 billion Northeast Supply Enhancement pipeline project, citing both water quality and climate change concerns.
Wheeler said the change would prevent states from holding “our nation’s energy infrastructure projects hostage,” deterring investors.
“You won’t be able to use 401 in the future, citing climate change,” Wheeler said.
Interstate pipelines, coal terminals and other projects cannot proceed without a state agreeing to a water permit or waiving its authority to issue a certification.
Several states, including Washington, have hinted that they would take legal action against the EPA if it moves to curtail state authority under the Clean Water Act.
“The Trump Administration’s proposed rule would usurp state and tribal authority to regulate our waters, in violation of the law,” Washington Attorney General Bob Ferguson said after submitting comments in October.
Washington denied a section 401 permit in 2017, effectively blocking the construction of a coal export terminal that would have allowed western U.S. coal to be transported to Asia.
The American Petroleum Institute, which has criticized states like New York for blocking pipeline construction, praised the new rule.
Reporting by Valerie Volcovici; Editing by Steve Orlofsky and Aurora Ellis
For more on health and environment regulatory roll-backs under the Trump Administration that will directly or indirectly impact the safety of fossil fuel pipeline infrastructure please visit the Harvard Law School Environmental and Energy Law Program’s Regulatory Rollback Tracker.