Trump rule limits states from blocking pipeline projects

The Trump administration gutted a key portion of the Clean Water Act on Monday, limiting states’ ability to block controversial pipeline projects that cross their waterways.

The final rule from the Environmental Protection Agency (EPA) targets Section 401 of the law, which lets states halt projects that risk hurting their water quality. 

It’s been a target of President Trump, who last April ordered the agency to accelerate and promote the construction of pipelines and other important infrastructure.

“Today, we are following through on President Trump’s Executive Order to curb abuses of the Clean Water Act that have held our nation’s energy infrastructure projects hostage, and to put in place clear guidelines that finally give these projects a path forward,” EPA Administrator Andrew Wheeler said in a statement.

The Clean Water Act essentially gives states veto power over large projects that cut through their rivers and streams, giving them a year to weigh permits and determine how projects would impact their water quality.

Environmentalists see it as a way for states to assert their power to block risky projects, but the fossil fuel industry and many Republicans say the section has been abused to stall infrastructure.

“This rule is an egregious assault on states’ longstanding authority to safeguard the quality of their own waters. Despite the Trump administration’s professed respect for ‘cooperative federalism,’ it is clearly willing to steamroll states’ rights and greenlight major construction projects with no regard for how they might damage state waters,” Lisa Feldt with the Chesapeake Bay Foundation said in a statement.

Two states run by Democrats have recently used the law to sideline major projects: 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 also denied certification for the Millennium Coal Terminal, a shipping port for large stocks of coal.

The new policy from the Trump administration would accelerate timelines under the law, limiting what it sees as state power to keep a project in harmful limbo. The need for a 401 certification from the state will be waived if states do not respond within a year. 

On a call with reporters, Wheeler accused some states of abusing the law, dragging out the certification for years or denying projects for reasons not sufficiently tied to water quality, “wrapping projects in a bureaucratic Groundhog Day in the hopes that investors become frustrated and end development.”

States will still be able to block certain projects, but Wheeler warned states risk having their veto power overturned if they stray beyond water quality issues when denying a certification. Climate change or concerns over water scarcity would not be enough for a state to deny certification to a project, he said.

“Our system of Republican democracy, does not allow for one state to dictate standards or decisions for an entire nation,” Wheeler said.

Mark Ryan, a lawyer who specializes in the Clean Water Act and who spent two decades working at the EPA, said the new rule shifts the balance of power, putting project applicants in a stronger position to drag out the process by running out the clock on states, which will no longer be able to object to projects after a year.

“This changes the balance of power that has existed over the last 40 years from the states to the applicants,” he said, adding that applicants may be incentivized to withhold information from their application, leaving a state stuck waiting for information.

“I think it’s very low probability they’ll get this past the Supreme Court,” Ryan said.

The changes in the new rule mirror those asked for by both the fossil fuel industry and some Republican lawmakers with strong industry presence in their states.

“We support the Clean Water Act, and though certain states have continued to go well beyond its scope for water quality certifications, we hope the addition of a well-defined timeline and review process will provide certainty to operators as they develop infrastructure projects that meet state water quality standards,” the American Petroleum Institute, which represents oil and natural gas companies, said in a release Monday.

Governors and state attorneys general pushed back against the rule when it was first proposed in August, reiterating vows to sue.

“The law is absolutely clear — states have both the right and the responsibility under the Clean Water Act to preserve our environment and protect public health. The White House’s relentless attacks cannot change that,” Washington Gov. Jay Inslee (D) and Attorney General Bob Ferguson (D) said in a joint statement when the rule was first proposed.

Environmental groups on Monday said the Trump administration is trampling states’ rights.

“This is a dangerous mistake. It makes a mockery of this EPA’s claimed respect for ‘cooperative federalism,’” the Natural Resources Defense Council said in a statement.

“This action undermines how our foundational environmental laws work. The federal government should be setting baseline standards, while states apply and enhance them to the benefit of their unique natural resources and residents.”

–This report was updated at 4:49 p.m.