Defeat Trump, EPA to empower states and tribes to oppose pipelines

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The Environmental Protection Agency said on Thursday it would seek to return powers to states to oppose gas pipelines, coal terminals and other projects that threaten lakes, rivers and streams, overturning a major rule of the Trump administration.

For half a century, states under the Clean Water Act had broad power to alter or even block many energy projects and other infrastructure that threatened to pollute or harm waterways around the world. within their borders. But in 2020, President Donald Trump issued regulations limiting that power.

Today, the EPA is seeking to restore state authority, making it easier for local authorities, including Native American tribes, to review construction proposals for many highways, hydroelectric dams, shopping malls, housing estates and even wineries and breweries.

“For 50 years, the Clean Water Act has protected water resources that are essential to thriving communities, vibrant ecosystems, and sustainable economic growth,” EPA Administrator Michael Regan said in a statement. . “The EPA’s proposed rule builds on that foundation.”

Although the proposed rule does not explicitly target fossil fuel infrastructure, Democrats could seek to invoke it to reduce emissions that contribute to global warming. New York, for example, once used its power under the Clean Water Act to cancel a gas pipeline it said was “inconsistent” with the state’s climate goals.

Under the Clean Water Act, the federal government cannot issue permits for projects that may harm protected waterways without obtaining permission from states, territories or tribes. The new rule will give local authorities more time and leeway to make these decisions.

Agency officials will collect public comment on the proposal over the next 60 days, with plans to revise and finalize the rule after getting that comment by spring next year.

The reversal will be one of the last of dozens of Trump environmental policies that President Biden’s team has reversed.

Tracking Biden’s Environmental Actions

But the proposed rule, which the agency has been working on for more than a year, could meet resistance from property developers, oil and gas operators and other business interests who have long lamented the bureaucratic hurdles they have to jump through. . In the past, red tape increased the costs and risks associated with construction, leading some developers to abandon projects altogether.

And the proposal could block Biden’s efforts to rebuild the country’s crumbling infrastructure and cut energy costs if states and tribes decide to erect roadblocks to energy projects. With rising gas prices, the White House has identified the fight against inflation as a top priority.

“In an era of growing regulatory uncertainty and high energy costs, adding red tape is the exact opposite of what is needed,” said Robin Rorick, vice president of interim policy at the American Petroleum Institute. .

The oil and gas lobby group fears the proposal will mean “increasing permitting timelines and allowing states to go well beyond their scope for water quality certifications,” added Rorick.

But with the dangers of rising temperatures mounting, left-leaning state leaders have turned to their authority under the Clean Water Act to block the building of more fossil fuel infrastructure in recent years.

Washington state, for example, canceled an export terminal that would have shipped coal to Asia but caused “irreparable and unavoidable damage” to the Columbia River, according to state regulators.

These blue state policies have earned the ire of the Trump administration. In an effort to end construction delays, Trump, a real estate developer before entering politics, asked the EPA to help pave the way for energy infrastructure.

In 2020, the agency issued a rule imposing a tight one-year deadline on local governments to make decisions and requiring state bureaucrats to consider only a narrow set of quality standards. water.

“It’s made it much, much harder for states to exercise authority, which is interesting because the Trump administration was all about states’ rights — until it wasn’t,” said Mark Ryan, an attorney who worked at the EPA on water issues. for a quarter of a century before entering private practice.

In response, the Biden administration plans to keep the one-year deadline but will give states more flexibility in determining when the clock starts. It also plans to allow local regulators to “holistically” assess water quality impacts and model the effects of climate change when making certification decisions.

“The end result of this rule will be cleaner, healthier waters that will benefit water quality, wildlife and our way of life,” said Jim Murphy, director of legal advocacy at the National Wildlife Federation. .

The move would align the EPA with a 1994 Supreme Court ruling that states could require hydroelectric dams to maintain a minimum amount of water in rivers to sustain fish populations, an issue that is not directly related to water pollution.

Jon Devine, director of federal water policy at the Natural Resources Defense Council, said the Supreme Court recognized that the Clean Water Act gives states the right “to look at the whole project.”

“That’s an essential part of what’s needed in the new rule.”

At present, the Trump administration’s water rule remains in effect. A federal district judge originally overturned it last year after more than a dozen states sued to stop it.

But in a 5-4 decision in April, the Supreme Court took the unusual step of reinstating the Trump-era settlement — at least temporarily — as the case progresses through the appeals court.

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