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Following Trump's Executive Order, EPA Moves to Limit States' Ability to Block Dirty Energy Projects

"Not a day goes by where [EPA] doesn't do *something* to endanger your health."

The Environmental Protection Agency on Friday issued a guidance to limit state and tribal authority to block energy projects. (Photo: Pax Ahimsa Gethen/Flickr/cc)

In just the latest move by the Trump administration to expand dirty energy infrastructure no matter the cost to the climate and public health, the Environmental Protection Agency on Friday issued a new guidance that limits the ability of states and tribes to block permits for proposed projects such as fossil fuel pipelines.

"Not a day goes by where [EPA] doesn't do *something* to endanger your health," Jake Levine, a climate attorney who served as an energy aide to former President Barack Obama, tweeted in response to the news Friday.

The EPA put out the guidance (pdf) to facilitate the implementation of President Donald Trump's April executive order to expedite the approval process for energy projects—which critics at the time decried as "a massive abuse of power that does nothing other than line the pockets of Trump's fossil fuel billionaire friends, all at the expense of our democracy and our safety."

The guidance is specifically about Clean Water Act (CWA) Section 401, which empowers state and tribal governments to "certify" projects permitted at the federal level by the Army Corps of Engineers, EPA, or Federal Energy Regulatory Commission.

E&E News, which first reported on the development Friday, explained how states have used that power and how the Trump administration intends to rein it in:

In recent years, New York and Washington have used this certification process to deny permits for pipelines and coal terminals not just due to water quality concerns, but also because of their contribution to air pollution and climate change.

Guidance issued today by EPA seeks to limit that practice. The guidance is meant as a stand-in while EPA works on formal regulations.

The guidance itself doesn't carry the rule of law, and therefore states are not bound by it. But it serves as a significant warning shot. States that ignore EPA guidance could well find themselves in court, either fighting EPA for ignoring their certification decisions or fighting with industry.

The guidance aims to restrict the scope of state and tribal certifications, and force the local governments to issue decisions more quickly.

The EPA recommends in the document that certification reviews and decisions—including any requested modifications to comply with federal, state, or tribal laws—"be limited to an evaluation of potential water quality impacts."

If a state or tribe demands "conditions not related to water quality requirements, or has denied a water quality certification for reasons beyond the scope of Section 401," the guidance says, "federal permitting agencies should work with their Office of General Counsel and the EPA to determine whether a permit or license should be issued with those conditions or if waiver has occurred."

The document affirms that "federal permitting agencies have the authority and discretion to establish certification timelines so long as they are reasonable and do not exceed one year." It also says that if a local entity neither issues a decision for a project nor seeks an extension, "federal permitting agencies are authorized to determine that the Section 401 certification requirement has been waived and issue the federal permit or license."

The EPA's move was welcomed by the industry group Interstate Natural Gas Association of America as well as Republican Sen. John Barrasso (Wyo.), chairman of the upper chamber's Environment and Public Works Committee. According to the Center for Responsive Politics, Barrasso got more than half a million dollars in campaign contributions from the oil and gas industry between 2013 and 2018.

The Western Governors' Association, which represents 19 states and three Pacific territories, warned last month curtailing state or tribal power under CWA Section 401 "would inflict serious harm to the division of state and federal authorities established by Congress."

The group told E&E News Friday that it "remains concerned about EPA's guidance addressing states' authority to protect and manage their water resources under Clean Water Act."

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