August 2019 Vol. 74 No. 8
Washington Watch
EPA Expected to Limit State Authority over Pipeline Approval Process
The Environmental Protection Agency (EPA) was scheduled to release a proposed rule in August limiting the ability of states to delay or even prevent the building of pipelines, by delaying approval of water quality certifications required under the Clean Water Act. The CWA’s section 401 gives states a reasonable amount of time, defined as up to one year, to consider a pipeline’s application. If the state doesn’t make an up or down decision on that permit within the year, the certification requirement is considered waived and the pipeline company can move forward with construction assuming other permits, such as for endangered species and historical landmarks, are in place.
The EPA started meeting with state officials, tribal groups, environmental groups and pipeline officials in May, with an eye toward meeting the Aug. 8, 2019, deadline President Trump established in Executive Order 13878: Promoting Energy Infrastructure and Economic Growth issued April 10, 2019. The agency is expected to propose measures to make it harder for states to extend the one-year deadline. Some have done that by claiming an initial construction application is incomplete, requiring more information and then imposing the one-year deadline over again, once the additional information is received. There have also been state efforts to tie water quality permits to non-water quality issues.
The State of New York denied water quality certification for the $683-million Constitution Pipeline nearly three years after receiving the project’s initial application, and after Constitution withdrew and resubmitted its request for certification twice. New York denied certification for the Millennium Valley Lateral pipeline project, based on the lack of an analysis by FERC of the downstream greenhouse gas emissions, not water quality concerns.
Greenhouse gas emissions also come into play during state consideration of section 401, which says that once the water quality issue is dispatched, the state must also ensure that any discharges comply with “any other appropriate requirements of state law.” INGAA argues that states have used that last condition to stifle pipeline construction: “Given the overall focus of the Section 401 statutory program, the phrase ‘requirements of state law’ should be interpreted as referring to a state water quality law that provides a standard or requirement to be met, not a prohibition on action, such as a prohibition on interstate natural gas pipelines.”
Don Santa, president and CEO of the Interstate Natural Gas Association of America (INGAA), says his industry recognizes the distinctive roles of the federal and state governments in the environmental review of infrastructure projects. “Recently, however, the balance between those roles has been disrupted and some states have viewed Section 401 as means of determining which interstate pipeline projects are in the public interest and which are not,” he stated.
Environmental groups will oppose any tightening of 401 deadlines. Moneen Nasmith, staff attorney, Earthjustice, complains President Trump’s Executive Order “plainly tries to undermine state and local control over fossil fuel projects and shut the public out.” UC
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