WASHINGTON – The Biden administration said Thursday that it planned to revise a Trump-era rule that limits states ‘and tribes’ ability to veto pipelines and other energy projects that could pollute their local waterways .
The Trump administration finalized the rule last June, saying restrictions on state authority were necessary because many states are using clean water laws to prevent pipelines, coal terminals, and other fossil-fuel projects from moving forward Were. Since then, 20 states and several tribes have challenged this rule in court, arguing that the obstacles may impede their ability to protect their rivers and drinking water.
But under the Biden administration, the Environmental Protection Agency is now saying it will move to strengthen the state’s authority. “We have serious water challenges to address as a nation and, as an EPA administrator, I will not hesitate to make decisions that undermine the right of states and tribes to protect their waters, “Michael S. Regan, who took over as chief of the agency in March, said on Thursday.
Oil and gas industry groups, who previously praised the Trump-era regime, said they were wary of major changes.
“We hope that the revised rule will be written in such a way that balancing the protection of clean water with the timely construction of essential infrastructure projects, while the law does not permit manipulation for purposes unrelated to its original intent, “Said Karen Harbert, president and chief executive of the American Gas Association, which represents natural gas distribution and transmission companies.
The rule under consideration includes Section 401 of the Federal Clean Water Act, Which has empowered states and tribes for half a century to review and certify federal permits for industrial facilities and other projects that can discharge pollution into major local waterways. Without that certification, the federal government cannot grant a permit.
Over the past four years, many states have used clean water provision to prevent or delay fossil fuel projects from moving forward. In 2017, Gov. Jay Inslee of Washington Refused to authenticate A federal water permit for a coal export facility on the Columbia River, citing significant spill risks as well as impacts on air quality.
Last year, Gov. Andrew Cuomo of New York denied a permit for it A pipeline Which would have sent natural gas from Pennsylvania to its state based on the project’s “inability to perform” that it could comply with water quality standards. The state also noted that the burning of gas would increase global warming, weakening New York’s plans to curb greenhouse gas emissions.
The Trump administration sharply criticized those steps, arguing that Democratic states were essentially conducting climate change policy under the guise of a law for a different purpose.
In response, the Trump administration Issued a new rule: States and tribes will have a one-year time limit to certify or reject projects under the Clean Water Act, and they can only take water quality into consideration when determining permits, and not the effects of climate change. On issues such as.
Andrew Wheeler, President Donald J. Trump’s second EPA administrator, said the new limits would “curb the abuse of the Clean Water Act, which has taken our nation’s energy infrastructure projects hostage, and to implement clear guidelines that would ultimately make these projects a Give way. Forward. ” He said, states would no longer be allowed to use the law to object to projects “under the aegis of climate change”.
The rule was part of a broader move by the Trump administration to allow and promote new fossil-fuel development.
But Democratic lawmakers and environmental groups said the rule is a violation of states’ rights. Section 401, he said, was an important tool for states to protect the quality of their drinking water. He also argued that states with limited resources would be burdened with time restrictions for evaluating complex projects. He said companies would have an incentive to run the clock by delaying requests for data submission.
Environmental law experts also noted that the Supreme Court in 1994 explicitly affirmed the right of states to impose conditions on projects based on state law.
“The Supreme Court was very clear, states have broad authority to evaluate impacts on not only water resources, but other environmental issues,” said Julia Anastasio, executive director of the Association of Clean Water Administrators, all of which state water permit administrators Represents. 50 states.
The Biden administration did not clarify what changes it planned to make to the Trump-era regime. In a statement, the EPA stated that its purpose is to “strengthen the right of states and tribes to protect their vital water resources” while “maintaining the elements that support the efficient and effective implementation of Section 401”.
“The Biden administration is going to strike a hard balance on this rule,” Ms. Anastasio said. “With their infrastructure moving forward, they want to build more projects, many of which will require state certifications.”
The public comment period will have to go through before the EPA finalizes any changes to the rule.