States Sue Over Rule Limiting Them From Blocking Pipeline Projects

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Above photo: Tom Anderson.

A coalition of 20 states is suing the Environmental Protection Agency (EPA) over a rule that weakens states’ ability to block pipelines and other controversial projects that cross their waterways.

The Clean Water Act previously allowed states to halt projects that risk hurting their water quality, but that power was scaled back by the EPA, a move Administrator Andrew Wheeler said would “curb abuses of the Clean Water Act that have held our nation’s energy infrastructure projects hostage.”

The suit from California and others asks the courts to throw out the rule, which was finalized in June.

“Let’s be clear, this Trump administration rule is not about water quality. This is about pushing forward fossil fuel energy infrastructure,” said California Attorney General Xavier Becerra (D), calling the Clean Water Act “the only way to prove that these projects comply with state law.”

The Clean Water Act essentially gave states veto authority over projects by requiring projects to gain state certification under Section 401 of the law.

It applies to a wide variety of projects that could range from power plants to waste water treatment plants to industrial development.

But that portion of the law has been eyed by the Trump administration after two states run by Democrats have recently used the law to sideline major projects.

New York denied a certification for the Constitution Pipeline, a 124-mile natural gas pipeline that would have run from Pennsylvania to New York, crossing rivers more than 200 times. Washington state also denied certification for the Millennium Coal Terminal, a shipping port for large stocks of coal.

The EPA would not comment on the litigation directly but said that “prior to issuing this final rule, EPA’s water quality certification regulations were nearly 50 years old.”

“The agency’s recent action reflects the first comprehensive analysis of the text, structure and legislative history of Clean Water Act Section 401. As a result, the agency’s final rule increases the transparency and efficiency of the Section 401 certification process in order to promote the timely review of infrastructure projects while continuing to ensure that Americans have clean water for drinking and recreation,” the agency said.

The new policy from the Trump administration accelerates timelines under the law, limiting what it sees as state power to keep a project in harmful limbo. The need for a Section 401 certification from the state will be waived if states do not respond within a year.

But states argue the new rule won’t give them the time necessary to conduct thorough environmental reviews of massive projects.

And on Monday, Becerra complained the Trump administration wants states to evaluate only the most narrow impacts of a project, while issues like downstream flows from a hydroelectric plant or impacts on nearby wetlands are overlooked.

Along with California, Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington and Wisconsin also joined the suit.