WASHINGTON — The Biden administration on Thursday said it planned to revise a Trump-era rule that limited the ability of states and tribes to veto pipelines and other energy projects that could pollute their local waterways.
The Trump administration finalized the rule last June, saying that curbs on state authority were necessary because too many states had been using clean water laws to block pipelines, coal terminals and other fossil-fuel projects from going forward. Since then, 20 states and several tribes have challenged the rule in court, contending that the constraints could hamper their ability to safeguard their rivers and drinking water.
But under the Biden administration, the Environmental Protection Agency is now saying that it will move to bolster state authority. “We have serious water challenges to address as a nation and, as E.P.A. administrator, I will not hesitate to correct decisions that weakened the authority of states and tribes to protect their waters,” Michael S. Regan, who took over as head of the agency in March, said on Thursday.
Oil and gas industry groups, which had praised the earlier Trump-era rule, said they were wary of major changes.
“We hope that the revised rule will be written in a way that balances protecting clean water with the timely construction of essential infrastructure projects while not allowing the law to be manipulated for purposes unrelated to its original intent,” said Karen Harbert, the president and chief executive of the American Gas Association, which represents natural gas distribution and transmission companies.
The rule in question involves Section 401 of the federal Clean Water Act, which for half a century has given states and tribes the right to review and certify federal permits for industrial facilities and other projects that could discharge pollution into major local waterways. Without that certification, the federal government cannot grant the permit.
Over the past four years, several states have used that clean-water provision to block or delay fossil fuel projects from moving forward. 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 impacts on air quality.
Last year, Gov. Andrew Cuomo of New York 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. The state also noted that increased burning of gas would exacerbate global warming, undermining New York’s plans for curbing greenhouse gas emissions.
The Trump administration sharply criticized those moves, arguing that Democratic states were essentially conducting climate change policy under the guise of a law intended for a different purpose.
In response, the Trump administration promulgated a new rule: States and tribes would have a one-year deadline to certify or reject projects under the Clean Water Act, and they could take only water quality into consideration when judging permits, not issues like climate change impacts.
Andrew Wheeler, President Donald J. Trump’s second E.P.A. administrator, said that the new limits would “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.” States, he said, would no longer be allowed to use the law to object to projects “under the auspices of climate change.”
The rule was part of a broader move by the Trump administration to speed up permitting and promote new fossil-fuel development.
But Democratic lawmakers and environmental groups said the rule infringed on states’ rights. Section 401, they said, had been a critical tool for states to protect their drinking water quality. They also argued that the time restrictions would burden states with limited resources to evaluate complicated projects. Companies would have an incentive to run out the clock by delaying requests to submit data, they said.
Environmental law experts also noted that the Supreme Court in 1994 had explicitly affirmed states’ authority to impose conditions on projects based on state law.
“The Supreme Court was very clear, states have broad authority to evaluate impacts not just on water resources, but also other environmental issues,” said Julia Anastasio, executive director of the Association of Clean Water Administrators, which represents state water permit administrators in all 50 states.
The Biden administration did not specify exactly what changes it planned to make to the Trump-era rule. In a statement, the E.P.A. said that it intended to “strengthen the authority of states and Tribes to protect their vital water resources” while also “retaining elements that support efficient and effective implementation of Section 401.”
“The Biden administration is going to have a tough balancing act on this rule,” Ms. Anastasio said. “With their infrastructure push, they are going to want to get more projects built, which will require state certifications for many of them.”
Any changes that the E.P.A. makes to the rule will have to go through a public comment period before being finalized.
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