In the midst of a pandemic and unrest that are exposing the public health and racial injustices in our society, the Trump administration’s unprecedented attack on long-standing, bipartisan bedrock public health and environmental safeguards marches on.
The latest move involves a new rule that ties the hands of states and tribes wishing to protect their waters from projects like pipelines, dams and coal terminals that go through the federal permitting or licensing process.
This rule was spurred by industry ill will over states blocking a few major fossil fuel infrastructure projects, such as New York state’s denial of gas pipeline projects over water quality concerns and the Millennium Bulk Coal terminal in Washington that threatened salmon habitat. It is no surprise that the administration has no problem limiting states’ rights if it would benefit the oil and gas industry. This rule elevates industry interests above state and tribal rights to safeguard their waters and the health of their people.
The new rule specifically weakens Section 401 of the Clean Water Act, which gives states and tribes the authority to review and potentially block or place conditions on federally permitted projects that could harm water quality from impacts like oil spills, nutrient pollution that can contaminate drinking water, loss of adequate flow for wildlife or habitat destruction or disturbance.
The new rule undermines states and tribes authorities to protect their waters in the several key ways.
First, the rule restricts the period of time that states and tribes have to analyze proposed projects. It gives the federal agencies wide latitude to put tight time limits on states or tribes to examine complex issues. It gives states no longer than a year to make a decision and in many cases it will be much less time.
Paired with this, the rule changes effectively allows the applicant — the pipeline company or the mining firm, for example — to determine when the clock starts ticking. This will incentivize applicants to provide as little information as they can get away with and then start the process, requiring the states and tribes to spend their limited time trying to gather the information they need. If the state or tribe can’t act in time, certification authority is waived and the applicant can move ahead regardless of state or tribal concerns.
The rule also thumbs its nose at two Supreme Court decisions, seeking to effectively overturn them. First, the rule limits the scope of review to projects that result in discharges from “point sources.” However, the Supreme Court’s unanimous 2006 opinion, S.D. Warren v Maine, found that state and tribal authority to review projects that affect water quality is broader than that.
This has real world impact. Some projects, like dams, affect water quality downstream, but are not considered “point sources” under the law. The Supreme Court has said dam relicensing is subject to state and tribal review even though they are not point sources. In 2018, Maryland certified the relicensing of a major hydropower dam but required the operator to address pollution issues and to manage the dam in a way that allows migrating fish easier access to spawning areas upstream. But the new rule could block states from reviewing major projects like dam relicensing.
The rule also takes a swipe at a 1994 Supreme Court decision, PUD No. 1 v. Washington, where Justice O’Connor’s majority opinion found that the Clean Water Act allows states and tribes to place limits or conditions on the entire proposed activity associated with constructing the dam, mine, pipeline or other project, not just the materials that would be intentionally dumped in the water.
The new rule limits the scope of review so that states and tribes cannot look at the ways the overall operation of an activity like a pipeline or mine or dam could pollute or degrade waters. This could undercut states’ abilities to make sure a dam is operated in a way that provides enough water for fish or pipeline measures to protect communities against oil spills. In the case of the Millennium Bulk Coal terminal, under the new rule, Washington state likely could not have considered the impacts of increased ship traffic on salmon. For an open-pit mine, the state or tribe might not be able to consider the impacts of toxic dust or runoff on water quality.
Finally, the rule gives federal agencies the power to effectively overrule or ignore state or tribal decisions they disagree with. This is an expansion of federal power that clearly defies the intent of the Clean Water Act.
This rule will end up in court. However, this rule, along with a rule excluding half the nation’s streams and wetlands from federal pollution protections, a recent executive order seeking to use the pandemic to excuse countless projects from full review under environmental laws, and scores of other initiatives, have put our public health and natural resources under a threat level we haven’t experienced in decades.
Jim Murphy is senior counsel for the National Wildlife Federation’s Climate and Energy Program. He is also an assistant professor of law at Vermont Law School and the director of the law school’s Environmental Advocacy Clinic, which represents the Federation