WASHINGTON — A new rule finalized by the Environmental Protection Agency just made it a lot easier for the federal government to override the will of states and tribes who might object to the construction of oil and gas pipelines in their own backyards.
On Monday, as much of Washington roiled from protests over the police killing of George Floyd, it was full steam ahead at the EPA, where Administrator Andrew Wheeler finalized a rule stipulating states and tribes have only one year to either approve or reject permits for proposed energy projects.
The narrowed time limit for permitting is a significant change to longstanding regulations under Section 401 of the 1972 Clean Water Act, legislation the Trump administration has aggressively worked to dismantle since taking the reins from the Obama administration.
By shortening the permitting window, some environmentalist groups argue states and tribes will be unable to conduct sufficient review on the possible environmental impact that projects like pipelines or hydroelectric dams might have on their community’s waterways.
The finalized rule also directs states and tribes to only consider pollution impacts on drinking water when reviewing permits. Under the guidance, they are not encouraged to consider how a permit may impact climate change.
Monday’s finalized rule was first proposed last August and gels with the mission laid out in President Donald Trump’s executive order last year directing federal agencies to unburden themselves from regulations – including those on permitting – that might inhibit greater energy production in America.
Wheeler, a longtime former coal lobbyist, suggested in a statement Monday that the recent changes to the certification process signaled progress against bureaucratic red tape.
“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,” Wheeler said.
A spokesperson for the EPA also told Courthouse News on Tuesday that the agency’s final rule shouldn’t worry environmentalists fretting over potential negative impacts to water quality because the rule is about review, not prevention, just as the Clean Water Act intended.
“The final rule establishes procedures that promote consistent implementation of CWA Section 401 and regulatory certainty in the federal licensing and permitting process,” the spokesperson said.
Betsy Southerland, former director of the EPA’s Office of Water from 1984 to 2017, disagreed heartily with that assessment Tuesday, saying that the rule was little more than an attempt by the Trump administration to ram through oil and gas pipelines against the wishes of states.
“If this rule stands, it will have a much bigger impact than EPA rescinding California’s ability to set its own emission standards because it will severely limit all aspects of every state’s ability to maintain healthy and abundant fisheries, drinking water supplies and certainly impact their ability to have safe flood control,” Southerland said. “This rule will be undoubtedly litigated and the states should prevail over EPA.”
Mark Ryan, former regional counsel for EPA’s Region 10 in the Pacific Northwest, called the finalized rule “very vulnerable to a legal challenge” Tuesday.
“The EPA will have a very hard time convincing the Supreme Court that its current interpretation of the Clean Water Act is correct,” said Ryan, a former special assistant U.S. attorney for over 15 years.
The new rule is the latest move by the EPA in a long running deregulatory campaign launched by the White House. Just last month, the agency began the finalization process for a rule first proposed in 2018 that requires raw data to be disclosed in any scientific studies.
Republican lawmakers and Wheeler have lauded the move as a means to ensure transparency, but Democrats and public health experts argue the data would open study participants to major privacy violations.