EPA's New Rule Limits States' Ability To Regulate Pipelines Under The Clean Water Act

Jun 2, 2020

A new EPA rule reverses 50 years of practice under the Clean Water Act by diminishing a state’s ability to reject large energy infrastructure projects like interstate pipelines.

It requires states to make decisions within a year on water quality permits related to those projects. Yet states have limited resources to conduct the necessary reviews of such large and complicated projects in that time, and are dependent upon companies providing timely information. As seen with Sunoco’s Mariner East project, permit applications repeatedly fell short of Pennsylvania Department of Environmental Protection’s requirements to review whether the project would preserve water quality.

A wave of new pipeline projects designed to transport shale gas, as well as shale oil and tar sands oil across state lines, has generated massive environmental opposition. One of the few avenues of influence states have over those projects are water pollution permits under section 401 of the federal Clean Water Act. Although the CWA is a federal environmental rule, states and some tribes have enforcement authority.

While Pennsylvania under Gov. Tom Wolf has not blocked any major pipeline projects through the use of 401 water pollution permits, both New York and New Jersey have halted the construction of planned pipelines that would have shipped Pennsylvania shale gas across state lines.

Williams’ planned Constitution pipeline received both federal approval and water quality permits from the Pennsylvania Department of Environmental Protection. But in 2016 New York state refused to issue water permits to the project, and the company scrapped its plan earlier this year.

Both New Jersey and New York denied permits to another Williams project, the Northeast Supply and Enhancement Project, an upgrade to the company’s massive Transco pipeline system that would have helped ship Pennsylvania shale gas to New York City and Long Island.

The new rule stems from an executive order issued by President Trump in April 2019 entitled “Promoting Energy Infrastructure and Economic Growth.”  When he issued that order, Trump called the federal guidance “outdated” and said it was “causing confusion and uncertainty” and hindering development of energy infrastructure.

In announcing the new rule, EPA Administrator Andrew Wheeler said the agency was returning to the Clean Water Act’s original purpose.

“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,” he said, “and to put in place clear guidelines that finally give these projects a path forward.”

But lawsuits challenging the constitutionality of the move are sure to follow. Environmental lawyers say it undermines the power of the states to enforce the Clean Water Act that was outlined by Congress when the law was passed in 1972.

“The Trump Administration is trying to re-write the Clean Water Act,” said Maya van Rossum of the Delaware Riverkeeper Network. “This is an absolutely unveiled effort to rob the states of their legal authority protected under the Clean Water Act when it comes to pipelines.”

Van Rossum said the role of the EPA is to implement laws passed by Congress, to not re-write those laws.

This story was published in partnership with StateImpact Pennsylvania, a collaboration between WESA, Allegheny Front, WITF and WHYY, to cover the commonwealth’s energy economy. Read more stories at StateImpact Pennsylvania's website.