EPA limits states’ ability to challenge energy project construction

June 3, 2020

The U.S. Environmental Protection Agency finalized a rule that would limit the time states, tribes and the public have to object to federal permits for energy projects.

The Clean Water Act Section 401 Certification Rule would set a one-year limit for states and tribes to approve or reject projects that could discharge pollution into waterways under the Clean Water Act and would limit any reviews to water quality impacts under a recent rule that redefined which waters fall under federal protection.

“EPA is returning the Clean Water Act certification process under Section 401 to its original purpose, which is to review potential impacts that discharges from federally permitted projects may have on water resources, not to indefinitely delay or block critically important infrastructure,” said EPA Administrator Andrew Wheeler in a press release. “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.”

The National Resources Defense Council and other environmental groups oppose the Trump administration’s decision.

NRDC director of federal water policy Jon Devine, who spoke at a water law symposium in Indianapolis earlier this year, said the Trump administration’s rule guts a state’s authority to safeguard its waters.

“This is a dangerous mistake. It makes a mockery of this EPA’s claimed respect for ‘cooperative federalism,’” he said. “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.”

The rule continues the EPA’s efforts to weaken environmental regulations.

Earlier this year, the EPA also limited environmental reviews of proposed federal actions covered under the National Environmental Policy Act. Indiana attorney general Curtis Hill and 15 other Republican attorneys general came out in support of weakening the NEPA law.

EPA limits states’ ability to challenge energy project construction