EPA Rule Change Limits States’ Ability to Block Pipeline Approvals

Citing unnecessary delays, EPA issues new rule that weakens states’ role in pipeline project approvals.

Today, the U.S. Environmental Protection Agency (EPA) issued its final rule that constrains the influence states have over pipeline approvals. The rule change targets the way states use section 401 of the federal Clean Water Act, and the so called “veto power” that states enjoy over the approval of energy infrastructure projects. Previously, states had fairly broad authority to block projects that they believed would risk harm to water quality by keeping them on hold indefinitely. Washington, New Jersey, and New York have recently used that authority to stall projects. In April the President issued an Executive Order that required EPA to promote pipeline construction. Under the new rule issued by EPA, states will have one year to issue or deny the necessary 401 certification or the project will bypass the need for state approval.

From the EPA press release:

“EPA is returning the Clean Water Act certification process under Section 401 to its original purpose, which is to review potential impacts that discharges from federally permitted projects may have on water resources, not to indefinitely delay or block critically important infrastructure,” said EPA Administrator Andrew Wheeler.

Environmental protection advocates were less than pleased when the final rule was issued this morning. Jon Devine, director of federal water policy at the Natural Resources Defense Council described it as a “dangerous mistake.” Washington State officials issued a statement with a similar message.

From coverage in the Washington Post:

Robert Irvin, president of the environmental group American Rivers, said in an interview that the shift would undercut the powers Congress when it passed the Clean Water Act in 1972, at which point it “gave states the authority to do more than the federal government is doing in order to clean up our rivers and have fishable, swimmable waters.”

“This administration is happy to put the responsibility for dealing with the pandemic on the states, but they’re far too quick to strip states of authority when they’re trying to protect rivers and clean water,” Irvin said.

Useful Links:

NYU Law Energy Infrastructure Page

EPA Final Rule

EPA Press Release

Washington State Press Release

Natural Resources Defense Council Statement