EPA issues guidance critics say would limit state's authorities over pipeline projects

EPA issues guidance critics say would limit state's authorities over pipeline projects
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The Environmental Protection Agency (EPA) issued a guidance Friday that critics say seeks to limit states’ influence over controversial pipeline projects.

Federal law through the Clean Water Act essentially gives states veto power over large projects that cut through their rivers and streams if they believe those projects would negatively impact their water quality.

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Spurred by an April executive order from President TrumpDonald John TrumpDC board rejects Trump Hotel effort to dismiss complaint seeking removal of liquor license on basis of Trump's 'character' DC board rejects Trump Hotel effort to dismiss complaint seeking removal of liquor license on basis of Trump's 'character' Mexico's immigration chief resigns amid US pressure over migrants MORE, the EPA’s guidance encourages states to more quickly process project applications, even if they don’t have all the information yet.

“This seems to be another attempt by the Trump Administration to limit states, and by extension local communities, ability to protect their own waterways and to give pipeline developers or other project proponents an ability to skip over one of the steps in the process that had been there to protect local waterways,” said Nathan Matthews, a senior attorney with the Sierra Club, one of the environmental groups weighing action against the EPA.

The Clean Water Act gives states a year to weigh permits and determine how projects would impact their water, but some feel states have used the process to block major projects.

“I welcome this announcement and hope EPA’s new guidance will reduce abuse of the Clean Water Act to block infrastructure needed to provide reliable and affordable energy,” Sen. Lisa MurkowskiLisa Ann MurkowskiHillicon Valley: Hacker group targeted electric grid | House Democrats press CBP over facial recognition program | Senators offer bill to protect health data | Groups file FCC complaint over carriers' use of location data Hillicon Valley: Hacker group targeted electric grid | House Democrats press CBP over facial recognition program | Senators offer bill to protect health data | Groups file FCC complaint over carriers' use of location data Klobuchar, Murkowski introduce legislation to protect consumer health data MORE (R-Alaska) said of the guidance in a press release. “EPA’s updated guidance will maintain vital protections for our water resources while promoting responsible development of our energy resources.”

The EPA said states should not take more time than is reasonable to review permits, encouraging them to “promptly begin evaluating the request to ensure timely action.”

The guidance says the timeline for reviewing the permits begins as soon as they are filed, and states should not wait for an environmental assessment to be completed as that may take longer than the year states are granted. The guidance also notes that the clock doesn’t stop because states have requested more information.

States have recently sidelined two large projects using the certification process through the Clean Water Act, actions that contradict the energy dominance strategy promoted by the Trump administration.

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 denied certification for the Millennium Coal Terminal, a shipping port for large stocks of coal.

“The Trump Administration’s attempt to attack our state’s right to protect the health and well-being of our residents, without any consultation with states or tribal governments, is wrong,” Washington state Attorney General Bob Ferguson said in a statement to The Hill. “It will undermine four decades of state and federal cooperation in environmental stewardship.”

But even states with more conservative leadership have spoken out for maintaining states rights under the law.

“We urge you to direct federal agencies to reject any changes to agency rules, guidance, or policy that may diminish, impair, or subordinate states’ well-established sovereign and statutory authorities to protect water quality within their boundaries,” the Western Governors’ Association wrote in a January letter when the White House was still weighing an executive order.  

Matthews said states are likely to have trouble getting the information they need in order to meet the timelines. The lengthy environmental assessment process means pipeline routes or construction plans might change long after they’ve applied for permission from the state. Trying to force states to approve a project before they have that information could backfire, he said.

“States cannot make a decision about whether a project will or won’t comply with state water quality standards until they know where and what rivers it will be crossing,” Matthews said. “If they encourage or later require states to make these decisions before all the information is available, states are going to have to deny these applications without prejudice and encourage them to reapply which could slow everything down rather than speed it up.”

Industry groups voiced support for the EPA guidance, arguing it helped restore the balance between the state and federal government.

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“The balance between those roles has been disrupted and some states have viewed Section 401 as means of determining which interstate pipeline projects are in the public interest and which are not,” Don Santa, president of the Interstate Natural Gas Association of America, said in a release, referring to the specific portion of the law creating the state certification process.

Environmentalists say they are still weighing what response to take to the guidance, though some say they are more concerned about the coming regulations on the same topic that were also spurred by Trump’s executive order.

“I would say there are several alarming suggestions in this guidance that if taken to their extreme could be very problematic as they play out,” said Moneen Nasmith, an attorney with EarthJustice. “There are a number of places that provide the suggestion that EPA could weigh in in places within the state decisionmaking process that it has never participated in before and doesn’t have the authority to do now.”

She’s concerned the EPA may try to weigh in on what reasons states can give to deny a certification or try to define water quality issues more narrowly, blocking states from weighing certain aspects of projects. Both are things she said EPA is not legally allowed to do.

“I’m worried that in the guidance EPA seems to be contemplating having that kind of role,” she said.