New York Harbor site of Williamsburg Pipeline project NY state denied    Photo: Wayne Parry, AP

The Environmental Protection Agency (EPA) yesterday issued another rule dealing a blow to 40 years of settled law on the authority of states and tribes under the Clean Water Act to block fossil fuel projects such as natural gas pipelines and coal terminals that could pollute state waterways.  The New York Times reports that the rollback infringes on states’ legal rights and their ability to ensure that drinking water supplies are safe, which are needed especially to protect frontline communities.  This announcement came the same day that the EPA Inspector General found that the agency failed to protect North Carolina drinking water from massive loads of PFAS or “forever” chemicals due to a lack of coordination between the regional office and the office of compliance and enforcement.

Why This Matters:  The EPA is turning the Clean Water Act on its head and undercutting states and tribes that are protecting the clean water and the health of their citizens.  This is the very provision of the law that the New York recently used to deny a controversial gas pipeline through New York harbor.  Congressional investigators have found that the Federal Energy Regulatory Commission cannot be trusted to give these projects are hard look.  And now the states won’t have the authority to do so.  Clean water will be denied to communities again.  

Trump Dictated This Rule Rollback By Executive Order 

EPA is finalizing a rule that Trump demanded they change in Executive Order 13868.  The EPA Administrator Andrew Wheeler announced the change in a statement saying “we are following through on President Trump’s Executive Order to curb abuses of the Clean Water Act that have held our nation’s energy infrastructure projects hostage, and to put in place clear guidelines that finally give these projects a path forward.”  The Clean Water Act’s Section 401 gives states and authorized tribes authority to assess potential water quality impacts of discharges from federally permitted or licensed industrial dischargers that may affect “navigable waters” within their borders.  The Trump Administration has already significantly narrowed the definition of what is a “navigable water” and now they are placing artificial time and scope limits on state and tribal determinations.

Undercuts The Clean Water Act and Fuels Water Injustice

According to Robert Irvin, the President of American Rivers and one of the nation’s leading legal experts on the Clean Water Act, Congress “gave states the authority to do more than the federal government is doing in order to clean up our rivers and have fishable, swimmable waters.  He told The Washington Post that, “[t]his administration is happy to put the responsibility for dealing with the pandemic on the states, but they’re far too quick to strip states of authority when they’re trying to protect rivers and clean water.”  Environmental groups and states argued this significantly hurts their ability to evaluate complicated projects with their limited resources and now companies seeking permits will just delay requests to submit data and run out the new one-year time clock.  However, the agency has shown repeatedly it is lax on water enforcement.  Yesterday, the EPA’s own Inspector General found that the Agency failed to enforce its own order against a Dupont chemical company and now the state of North Carolina has found “staggering” levels of PFAS in the Cape Fear River there that provides drinking water to many local towns.