EPA rule will limit states' power to deny permits for energy projects

June 2, 2020

U.S. Environmental Protection Agency chief Andrew Wheeler signed a rule that will strip states of the ability to block a federal water permit for any reason other than direct pollution to state waters.

Reuters reported that the rule was signed on June 3. The Trump administration has said some states have misused their authority under the Clean Water Act to prevent fossil fuel projects under the power of the Clean Water Act.

Under the rule 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.

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.

 

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