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WASHINGTON — The Biden administration on Thursday will move to restore authority to states and tribes to veto gas pipelines, coal terminals and other energy projects if they would pollute local rivers and streams, reversing a Trump-era rule that had curtailed that power.
For 50 years, the Clean Water Act has given states and tribes the ability to review federal permits for industrial facilities and block projects that could discharge pollution into local waterways. Without their certification, the federal government cannot approve a project.
Michael S. Regan, the administrator of the Environmental Protection Agency, said the agency was proposing a rule that “builds on this foundation by empowering states, territories, and tribes to use congressionally granted authority to protect precious water resources while supporting much-needed infrastructure projects that create jobs and bolster our economy.”
Water resources are “essential to thriving communities, vibrant ecosystems and sustainable economic growth,” Mr. Regan said in a statement.
The Biden Administration’s Environmental Agenda
President Biden is pushing stronger regulations, but faces a narrow path to achieving his goals in the fight against global warming.
Some states have used their authority under the Clean Water Act to stop or delay fossil fuel projects. In 2017, Gov. Jay Inslee of Washington refused to certify a federal water permit for a coal export facility on the Columbia River, citing the risk of significant spills as well as effects on air quality. In 2020, Andrew Cuomo, who was governor of New York at the time, denied a permit for a pipeline that would have shipped natural gas into his state from Pennsylvania, based on the project’s “inability to demonstrate” that it could comply with water quality standards.
In 2020, the Trump administration implemented a rule to curtail that review power and limit the time during which states and tribes could grant or deny permits. Trump officials argued that Democratic states were essentially conducting climate policy under the guise of a law intended for a different purpose. They said they wanted to curb abuses of the law that were holding fossil fuels projects “hostage.”
Environmental groups and Democratic lawmakers accused the Trump administration of fast-tracking big energy projects at the urging of the oil and gas industry.
“The rule was in place since 1971 and the Trump administration moved to undo it, basically constraining the ability to challenge the environmental impacts of projects,” said Richard L. Revesz, a professor of environmental law at New York University.
The Biden administration’s proposed changes essentially would restore the conditions that existed before the Trump presidency.
They come as Mr. Biden is calling on the oil and gas industry to step up production to relieve high prices at the pump. Energy trade groups said they were concerned the new regulation could block infrastructure they believe is needed to meet demand.
Mr. Revesz said he did not believe the actions by the Biden administration would affect prices at the pump, since the Trump administration’s limits would remain in place until the Biden rule is finalized, most likely next year.
“Keeping the Trump rule in place is not going to keep gas prices low, and removing the Trump rule is not going to raise gas prices,” he said.
Republicans criticized the Biden administration’s plans as adding needless red tape while allowing fossil fuel opponents to create barriers for oil and gas projects.
“It should not take longer to get the permits and permissions for a pipeline than it does to build one,” Karen Harbert, president of the American Gas Association, said in a statement on Wednesday. She said companies were “concerned that the proposed rule will veer from the intent that Congress had when authoring the Clean Water Act and will allow some states to delay and increase costs for essential energy infrastructure.”
Julia Anastasio, executive director of the Association of Clean Water Administrators, which represents water permit administrators in all 50 states, said the rejection of the coal terminal in Washington State and the gas pipeline in New York did not amount to a larger trend.
Ms. Anastasio said while those cases became the “poster children” for fossil fuel industry supporters, “There wasn’t really a problem out there. States were doing their job and doing it well.”
She said tweaks to the Clean Water Act provision could be needed, but that the Trump-era changes had gone too far. The right to review projects that cross local waterways “is clear authority that was given to the states by Congress,” Ms. Anastasio said.
The proposed rule must go through a 60-day period of public comment and review before it is finalized.
