Three leading Democrats on the US Senate Environment and Public Works committee expressed concerns on June 3 that President Donald Trump’s Apr. 10 executive orders aimed at facilitating oil and gas pipeline construction could erode states’ powers to review federally licensed and permitted projects for consistency with states’ requirements under Section 401 of the 1972 Clean Water Act.
Thomas R. Carper (Del.), the full committee’s ranking minority member; Tammy Duckworth (Ill.), the top Democrat on the Fisheries, Water, and Wildlife subcommittee; and Cory Booker (NJ), who holds a similar spot on the Superfund, Waste Management, and Regulatory Oversight subcommittee, outlined their points in a letter to US Environmental Protection Agency Administrator Andrew W. Wheeler.
“As you are aware, long before Congress entrusted states with the primary responsibility for reducing and eliminating pollution in waters within their borders, states already had primary authority to regulate water quality,” they said. “Congress added Section 401 to the [CWA] to ensure that states were sufficiently protecting water quality, while establishing a federal safety net should states fail to do so.”
Pipeline construction advocates have charged that New York State’s Department of Environmental Conservation has used its CWA Section 401 authority to stop the building of interstate gas pipelines crossing the Empire State into New England.
After nearly 5 decades and multiple opportunities to amend the law, Congress has never seen the need to significantly revise Section 401(d)—even after the US Supreme Court’s 1994 decision explicitly affirming state authority to impose conditions based on state law, the senators said.
EPA has announced that it intends to promptly develop guidance and promulgate new rules relating to state water quality certification under that provision, they said. “What we are less clear about are the motivations for these significant challenges to the much-revered concept of cooperative federalism, to which your agency gives a nod in the Apr. 10 press release announcing EPA’s commitment to implement the executive orders,” they said.
Cooperative federalism?
In that announcement, the senators said, EPA said the existing certification process for projects requiring federal approval “is an example of the cooperative federalism goals Congress envisioned when it enacted the CWA.”
The lawmakers said, “We agree. Our concern is that your purported deference to states and tribes flies in the face of your mandate to speed up federal permitting, and there is nothing cooperative about robbing states and tribes of the time and careful analyses they require to protect their invaluable water resources.”
They asked Wheeler to respond to six questions by June 21. One was which sections of the law EPA felt needed to be revised and clarified, and why.
