The Trump administration is reviewing steps it could take to prevent state officials from using their authority under the Clean Water Act to deny permits to developers of natural gas pipelines and other energy infrastructure.
The administration is reportedly considering issuing an executive order that would limit the ability of states to block natural gas pipelines and other energy projects. But legal experts countered that Trump would not be able to amend the Clean Water Act simply through the issuance of an executive order.
“I struggle to come up with a way he could basically rewrite the Clean Water Act with an executive order,” Scott Edwards, co-director of the climate and energy program at Food & Water Watch, told ThinkProgress.
Section 401 of the Clean Water Act requires companies seeking a federal license or permit to build facilities that may result in a release of a pollution into waters to obtain a permit from the state in which the discharge would occur.
Politico reported Thursday that Trump’s effort, possibly through an executive order, is aimed primarily at states in the Northeast, where opposition to proposed pipelines has put the projects on hold or forced them to be canceled.
“I don’t put anything beyond Trump’s efforts, whether it’s legal or illegal,” Edwards said.
Nonetheless, the Clean Water Act clearly gives states the authority to review a project’s potential impacts on water quality and allows them to deny permits when they deem it necessary.
Moneen Nasmith, a staff attorney with the nonprofit group Earthjustice, told ThinkProgress it’s “pretty darn clear” that states have authority to issue permits under Section 401 of the Clean Water Act and that the courts have upheld that authority, including in the context of pipelines.
“The Trump administration has been making noise about trying to do something to help these gas pipelines that are not used to being told no. But that doesn’t mean it has the authority to do that. And they don’t,” Nasmith said. “It doesn’t mean they won’t try. But it’s extremely difficult for me to envision how they would even begin to try to do that given the really clear language of Section 401.”
The future of several pipeline projects is in jeopardy over disagreements with state regulators. The New York State Department of Environmental Conservation (DEC), for example, denied a Section 401 permit to Constitution Pipeline Co., which would transport natural gas from northeastern Pennsylvania into New York.
The state agency also used its Section 401 authority to deny Millennium Pipeline a water quality permit for its Valley Lateral Project, a pipeline project that would serve a natural gas-fired power plant. However, a federal court ruled last March that New York State took too long in making its decision to deny water quality certification to Valley Lateral pipeline, amounting to a waiver of its right to block the project.
In New Jersey, state environmental regulators have yet to issue a Section 401 permit to the developers of the PennEast Pipeline, a 120-mile pipeline that would transport natural gas from northeastern Pennsylvania into New Jersey. The developers had hoped to begin construction on the pipeline in 2018. They now hope to begin construction in April.
Congressional Republicans, who often side with states in disputes with federal agencies, are on the opposite side in the case of pipeline development.
Despite widespread public support for environmental protection at both the federal and state levels, the Trump administration and these Republican senators are interested in weakening safeguards that are designed to protect the public and water quality in order to support the fossil fuel industry, said Kelly Martin, director of the Sierra Club’s Beyond Dirty Fuels Initiative.
“They’ll be met with resistance in trying to relax those rules, both from the public and from other lawmakers,” Martin told ThinkProgress.
Last October, several Republicans on the Senate Environment and Public Works Committee sent a letter to acting Environmental Protection Agency (EPA) Administrator Andrew Wheeler asking him “to determine whether new clarifying guidance or regulations are needed in light of recent abuses of the Section 401 process by certain states.”
“In the last few years, a troubling trend directed at fossil energy projects has arisen. A select number of states have hijacked Section 401 to delay or block the development of natural gas pipelines and a coal export terminal. While the focus of these abuses today is fossil energy, the approach could be used to target any type of project that is disfavored politically,” Sen. John Barrasso (R-WY), chairman of the Senate committee, and fellow Republicans wrote in the letter.
In July, Barrasso introduced S. 3303, the Water Quality Certification Improvement Act of 2018, which would limit the considerations and processes states could use when evaluating water quality impacts under Section 401.
The EPA could “tinker around the edges” of Section 401, perhaps taking a closer look at the reasons states have given for denying a water quality permit to a pipeline company, according to Nasmith.
“But the EPA could not take away the ability of states to exercise the authority that they clearly have under a statute,” she said.