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STATES FIGHTS: 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.
Trump admin accuses states of abusing law: 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.
Read more on the new rule here.
‘LESS PROTECTIVE’ The Environmental Protection Agency (EPA) on Friday finalized a rule to control leaks of a type of pollution from industrial equipment, though critics argued the agency did not go far enough.
The agency announced Monday that it had promulgated a rule to regulate emissions of ethylene oxide (EtO), which is used in the production of industrial chemicals. Chronic exposure to EtO has been associated with cancer and neurotoxicity and short-term exposure has been linked to lung injuries.
EPA administrator Andrew Wheeler said in a statement that the action underscores the Trump Administration’s “commitment to addressing and reducing hazardous air pollutants, including ethylene oxide emissions, across the country.”
EPA garners criticism: But Emma Cheuse, an attorney with Earthjustce, criticized the agency for choosing to finalize what she called the “less-protective” option of two that it was considering.
“EPA has chosen not to control the pollution as much as possible to prevent people from getting cancer from ethylene oxide,” Cheuse told The Hill.
When the rule was in the proposal stage, the agency weighed the implementation of a stricter standard for what would be considered a leak of EtO at certain high-risk facilities but did not ultimately choose to implement the stricter standard.
Cheuse said she believed the rule should have included other measures such as fence-line monitoring, in which facilities track emissions at the edge of their facilities to determine how much of the substance is crossing into other areas.
Read more on the rule here.
WELL, WELL, WELL: A group of lawmakers is pushing Congress to address oil and gas wells that have been abandoned or whose operator is unknown in a future coronavirus stimulus package.
So-called “orphan wells” emit both methane and carbon dioxide according to the Environmental Protection Agency. Wells that are plugged have lower emissions on average than those that are not.
On Monday, New Mexico Democrats Sen. Martin Heinrich, Rep. Ben Ray Luján and Rep. Xochitl Torres Small released a statement in favor of taking action to close off these wells.
“Old, decaying wells and environmental damage threaten communities across the country,” they said. “Congress should respond to this challenge with strong funding for states and tribes to address the current backlog of these orphan wells, put thousands back to work plugging them and restoring the land, and protect groundwater and curb hazardous emissions and greenhouse gases.”
Dems hold hearing: Democrats on the House Natural Resources Committee held a hearing on orphan wells Monday during which some stakeholders spoke in favor of closing the wells.
Lynn Helms, the director of North Dakota’s Department of Mineral Resources, told lawmakers that his state did not have any orphan wells prior to the coronavirus pandemic but now has more than 300.
“Funding this important work will provide an immediate, meaningful stimulus,” Helms said. “In North Dakota, we estimate that plugging and reclaiming our small number of orphan wells could sustain 600 service sector jobs for six months.”
Read more about the wells here.
COMING SOON: House lawmakers are organizing a companion bill as the Senate gears up to pass a bill that would permanently fund the Land and Water Conservation Fund.
The bipartisan legislation would direct $900 million in oil and gas revenue for conservation efforts, such as securing land for parks.
It would be paired with offering up $6.5 billion to address a more than $12 billion maintenance backlog at national parks.
A spokeswoman for Rep. Joe Cunningham (D-S.C.) said the freshman lawmaker would soon formally introduce an identical companion bill in the House, with a total of 12 cosponsors split between the two parties.
The Senate could take up the bill as early as Wednesday.
OUTSIDE THE BELTWAY:
States Warn That Virus May Doom Climate Projects, The New York Times reports
New Jersey Sets Limits for PFOA, PFOS in Drinking Water, Bloomberg Law reports
Sixth mass extinction of wildlife accelerating, scientists warn, The Guardian reports
ICYMI: Stories from Monday…
Trump rule limits states from blocking pipeline projects
EPA finalizes rule to regulate cancer-linked chemical
Democrats want Congress to help plug ‘orphan’ oil and gas wells
FROM THE HILL’S OPINION PAGES:
-“In order for these bailouts to work, they should set the aviation industry on the right path by addressing the twin challenges of COVID-19 and global climate change,” writes Dan Rutherford, aviation director at the International Council on Clean Transportation.
-Iran continues its nuclear work, but is it weapons grade? asks Simon Henderson, director of the Bernstein Program on Gulf and Energy Policy at the Washington Institute for Near East Policy.