On June 1, 2020 the Environmental Protection Agency published final rules clarifying how states must implement Clean Water Act Section 401 certifications required for pipeline project permits.
EEIA lobbied long and hard for these needed reforms. The two most important new provisions (1) prevent states from rejecting pipeline project permit applications on grounds unrelated to water quality (such as air quality or climate change), and (2) require states to act on permit applications within one year from their original submission by the developer. Prior to these clarifications, some states exploited ambiguities in the prior regulations to reject projects for political reasons. The new rules will become effective 60 days from their publication in the Federal Register, which is expected shortly. The final 289-page rule is available in pre-publication version here.
In a long and intensive campaign in support of the new rules, EEIA and several of our members testified before the EPA; we organized a coalition of twenty-seven business and labor groups appealing to EPA Administrator Andrew Wheeler to adopt the new rules; we generated over one hundred letters from EEIA members to the EPA, and we co-authored technical recommendations with the U.S. Chamber and the National Association of Manufacturers to strengthen and refine the language of the rule.
While the new rules are now final, we expect them to be challenged in Federal Court by the offending states and by anti-pipeline groups. EEIA will do all we can to defend the rules if and when they become subject to opposition litigation.
In advocating for these much-needed reforms, EEIA stressed the following points to Administrator Wheeler, which emphasize the urgency of their adoption:
"In the absence of definitive boundaries, some states have taken advantage of ambiguity in Section 401 to deny certification on grounds outside the Section's purposes and intent. This has resulted in delay or cancellation of vitally needed energy infrastructure projects that would otherwise have provided consumers and our environment the tremendous benefits of increased access to affordable clean energy.
"For our industries and trades, denial or delay of certification of critical energy infrastructure projects on grounds beyond those intended by the statute has resulted in large-scale loss of work, stranded investments in equipment and materials, and inability of our businesses and workforce to plan for efficient deployment and utilization of both human and capital assets. This has deprived our families, communities and the economy of the very substantial benefits that construction and operation of the affected projects would otherwise have driven.
"The Proposed Rule would provide clarity, consistency and regulatory certainty in the process for state and tribal execution of their authority under Section 401 by establishing standards for timely reviews of applications, focusing their scope to areas intended by the Clean Water Act, and setting clear and uniform standards for implementation. With these needed improvements, the Rule would continue to ensure effective protection of our water resources."