Following
Trump's Executive Order, EPA Moves to Limit States' Ability to Block Dirty
Energy Projects
In just the latest
move by the Trump administration to expand dirty energy infrastructure no
matter the cost to the climate and public health, the Environmental Protection
Agency on Friday issued a new guidance that limits the ability of states and
tribes to block permits for proposed projects such as fossil fuel pipelines.
"Not a day goes
by where [EPA] doesn't do *something* to endanger your health," Jake
Levine, a climate attorney who served as an energy aide to former President
Barack Obama, tweeted in response to the news Friday.
The EPA put out
the guidance (pdf) to facilitate the
implementation of President Donald Trump's April executive order to expedite the approval
process for energy projects—which critics at the time decried as "a massive abuse of power
that does nothing other than line the pockets of Trump's fossil fuel
billionaire friends, all at the expense of our democracy and our safety."
The guidance is
specifically about Clean Water Act (CWA) Section 401, which empowers state and
tribal governments to "certify" projects permitted at the federal
level by the Army Corps of Engineers, EPA, or Federal Energy Regulatory
Commission.
E&E News, which first reported on the development Friday,
explained how states have used that power and how the Trump administration
intends to rein it in:
Guidance issued today
by EPA seeks to limit that practice. The guidance is meant as a stand-in while
EPA works on formal regulations.
The guidance itself
doesn't carry the rule of law, and therefore states are not bound by it. But it
serves as a significant warning shot. States that ignore EPA guidance could
well find themselves in court, either fighting EPA for ignoring their
certification decisions or fighting with industry.
The guidance aims to
restrict the scope of state and tribal certifications, and force the local
governments to issue decisions more quickly.
The EPA recommends in
the document that certification reviews and decisions—including any requested
modifications to comply with federal, state, or tribal laws—"be limited to
an evaluation of potential water quality impacts."
If a state or tribe
demands "conditions not related to water quality requirements, or has
denied a water quality certification for reasons beyond the scope of Section
401," the guidance says, "federal permitting agencies should work
with their Office of General Counsel and the EPA to determine whether a permit
or license should be issued with those conditions or if waiver has
occurred."
The document affirms
that "federal permitting agencies have the authority and discretion to establish
certification timelines so long as they are reasonable and do not exceed one
year." It also says that if a local entity neither issues a decision for a
project nor seeks an extension, "federal permitting agencies are
authorized to determine that the Section 401 certification requirement has been
waived and issue the federal permit or license."
The EPA's move was
welcomed by the industry group Interstate Natural Gas Association of America as
well as Republican Sen. John Barrasso (Wyo.), chairman of the upper chamber's
Environment and Public Works Committee.
According to the Center for Responsive
Politics, Barrasso got more than half a million dollars in
campaign contributions from the oil and gas industry between 2013 and 2018.
The Western Governors'
Association, which represents 19 states and three Pacific territories, warned
last month curtailing state or tribal power under CWA Section 401 "would
inflict serious harm to the division of state and federal authorities
established by Congress."
The group told E&E
News Friday that it "remains concerned about EPA's guidance
addressing states' authority to protect and manage their water resources under
Clean Water Act."
