An environmental group sued the US Environmental Protection Agency to vacate a rule intended to prevent states from blocking natural gas pipelines and other infrastructure projects by denying critical water quality permits.
The July 13 lawsuit filed by the Delaware Riverkeeper Network in the US District Court for the Eastern District of Pennsylvania came the same day EPA published the final rule in the Federal Register. The rule is "arbitrary and capricious and contrary to the text, structure, and overarching purpose of the Clean Water Act," said the suit (US District Court for the Eastern District of Pennsylvania Case 2:20-cv-03412).
Further legal challenges by pipeline opponents could follow. Since the rule was proposed in August 2019, experts have predicted lengthy court battles over the regulation, which was also opposed by the attorneys general of 22 states and the District of Columbia.
The regulation deals with Section 401 of the Clean Water Act, which gives states authority to review whether federally approved infrastructure complies with standards set for protecting local water quality. Major pipeline projects have hit permitting roadblocks in recent years during state Section 401 reviews. EPA Administrator Andrew Wheeler told reporters in June that some states have abused their Section 401 authority and denied permits to projects for reasons that had nothing to do with water quality.
The final rule, which confines the scope of state reviews to potential impacts on water quality, is meant to prevent that. The regulation says state regulators should not consider factors related to other environmental concerns, and it mandates that states decide on permits within a year. The rule is set to take effect September 11.
When the final version of the rule was released on June 1, industry groups welcomed it as a check against project delays. But environmental groups argued the regulation shakes up federal-state dynamics on infrastructure projects in a way that would come at the expense of states, which the groups said are better suited to assess local water quality impacts.
'Bending over backwards'
"This dramatic change in policy after nearly 50 years of cooperative federalism is nothing more than the Trump administration bending over backwards to accommodate the fossil fuel industry by removing any regulatory obstacles the industry faced, when in reality these 'obstacles' are legal and necessary measures that help states protect their environment and communities," Maya van Rossum, leader of the Delaware Riverkeeper Network, said in a statement.
The Sierra Club also weighed in during a public comment period in October 2019, saying the rule will result in "adverse and wide-ranging consequences beyond the purported impetus for these changes, and will not fix the alleged problems EPA aims to solve." It also argued the rule change "severely limits" states' ability to properly evaluate the impact federally permitted projects would have on waterways.
But experts on the CWA and energy infrastructure development have said that states opposed to infrastructure projects would still find ways to block them, particularly if Congress is unwilling to change the underlying law.
Legal and policy experts at ClearView Energy Partners noted in June that EPA left out of the final version a key provision from the proposed rule. That component of the proposed rule would have empowered a federal permitting agency to review whether state-required conditions on permit certifications or reasons for permit denials were "consistent with the scope" of the CWA that EPA was proposing to define. As proposed, that would have allowed federal permitting agencies to set aside permit conditions or denials and let projects advance to construction while states and project opponents turned to the courts. Ultimately, EPA determined courts are better suited to evaluate the state reviews.
"Like the proposal, the final rule would not eliminate water quality certification denials," ClearView analysts said. "However, EPA abandoned what we considered to be the most controversial and potentially most impactful part of the August 2019 proposal."
