In an attempt to expedite dirty energy projects across the country, the Environmental Protection Agency (EPA) has issued new guidelines that will severely limit states’ power to deny or approve new energy projects in their jurisdiction.
In April, President Trump signed an executive order that targeted a states’ ability to delay natural gas, coal and oil projects based on Section 401 of the Clean Water Act. The executive order directed the EPA to change the part of the Clean Water Act that allowed states to delay projects based on environmental grounds.
Section 401 gives states the right to approve or deny projects based on whether or not they comply not only with the Clean Water Act, but also with the state’s water quality standards. In the past few years some environmentally conscious states, such as New York and Washington, have used this certification process to deny projects that not only affect water quality but contribute to air pollution and climate change.
The new guidelines issued by the EPA state that states should only base their certification decisions for energy projects on water quality issues.
Although the guidelines are not yet law, if a state decides to deny a project based on other conditions unrelated to water quality, federal agencies may rule that the state has waived its right to certify the project and will allow the permit to proceed. This means that many states that do not follow the new guidelines could end up going to court with either the EPA or fossil fuel companies.
“Though Section 401 envisions a robust state and tribal role in federal permitting and licensing process, it places limitations on how that role may be implemented to maintain an efficient permitting process within the overall cooperative federalism construct established by the (Clean Water Act),” writes the EPA.
The EPA is also attempting to speed up the process of certification for dirty energy projects by limiting how much time a state has to make a decision. Where before states could delay the process by asking for additional information on the project’s effect on the environment, they now have one year from the time the permit application has been received regardless of their review process.
If the state fails to issue a decision for a project in that time “federal permitting agencies are authorized to determine that the Section 401 certification requirement has been waived and issue the federal permit or license.”
“My action today will cut through destructive permitting delays and denials … what takes you 20 years to get a permit, those days are gone,” said Trump in April while signing the executive order.
States and environmental groups oppose the move by Trump and his administration, proclaiming that it is trampling states’ rights. New York Governor Andrew Cuomo says the decision is a “gross overreach of federal authority that undermines New York’s ability to protect our water quality and our environment.”
Other groups, such as the Western Governors’ Association, which represents 19 states and three Pacific territories, stated the the decision inflicts “serious harm to the division of state and federal authorities established by Congress.”