Biden EPA Just Cut FERC Off at the Knees re Certifying New Pipes
ANTI-DRILLING/FOSSIL FUEL | INDUSTRYWIDE ISSUES | PIPELINES | REGULATION September 15, 2023
Biden EPA Just Cut FERC Off at the Knees re Certifying New Pipes
ANTI-DRILLING/FOSSIL FUEL | INDUSTRYWIDE ISSUES | PIPELINES | REGULATION
September 15, 2023
In April 2019, President Trump signed an Executive Order (EO) instructing the Environmental Protection Agency to review Section 401 of the Clean Water Act–the section that grants states (and tribes) the right to have a say in pipeline and other infrastructure projects (see Trump Signs Executive Order Making it Harder to Block Pipes). In keeping with the EO, the EPA issued a draft rule in August 2019 tightening up standards used in Section 401, creating new boundaries so states like New York and Washington could not continue to “color outside the lines” by rejecting pipelines for political reasons, as they have both done (see EPA Issues Proposed New Rule for Section 401 Water Permit). The Bidenista EPA issued a new rule yesterday, destroying the Trump-era rule by returning power to the states to block new pipelines as before.
In part, the Federal Energy Regulatory Commission (FERC) was created to address the issue of states not playing nice together. Sometimes, a pipeline must cross one state to deliver oil and natural gas to another state that wants and can use it. FERC was created to overcome parochial, narrow interests by some states that might try to block such projects. Without FERC, no new interstate pipelines (or electric transmission lines) would get built because neighboring states that don’t want it would block it.
That was the situation under High Lord Obama. “Blue” states like New York delayed and then denied projects like Williams’ Constitution Pipeline from northeastern PA into NY by using fake, ginned-up excuses about climate change. NY and other blue states routinely colored outside the lines–pushing the boundaries of the law–in their denials of new pipelines. Trump’s EPA finally corrected the situation. But not without a fight.
In October 2021, a San Francisco Democrat judge appointed by Bill Clinton vacated the Trump EPA modifications (see Fed Judge Rules States Can Take Years to Issue 401 Water Permits). But that was not the end. In something of a “man bites dog” story, the liberal justices of the U.S. Court of Appeals for the Ninth Circuit (based in loony California) ruled earlier this year that the San Fran Democrat judge didn’t get it right (see 9th Circuit Rules Trump Rework of Clean Water Act Still Valid). The California federal judge couldn’t, said the 9th Circuit, vacate the EPA rule because he didn’t first consider whether it was unlawful. He’s a judge, yet he doesn’t bother to, you know, follow the law! What a novel idea to actually follow the law for a change.
The only recourse for the left was to have the EPA itself override and overwrite the existing Trump EPA rules. That is what happened yesterday. If left unchallenged, this proposed change means no new pipelines will ever get built in blue (Democrat-controlled) states like NY, NJ, MD, WA, NM, MA, CT, and others. It is a miscarriage of justice and a national tragedy.
The Biden administration is giving states and tribes more authority to block certain projects, like pipelines that run through their waters, on water quality grounds.
A new final rule from the Environmental Protection Agency (EPA) undoes the Trump administration’s efforts to limit states’ authority to block such projects.
Specifically, the new Biden rule allows a state or tribe to consider any aspect of the project with the potential to impact water quality as it weighs whether to approve or block a project.
“Our focus was on restoring [state] authority and providing an efficient path to critical infrastructure projects in this country,” Radhika Fox, the EPA’s top water official, told reporters on Thursday.
Several Democratic governors praised the rule in a statement issued by the Biden administration.
“EPA’s action will better protect New Mexico’s water quality at a time when federal and state protections are needed most,” said New Mexico Gov. Michelle Lujan Grisham (D).
The Clean Water Act gives states the authority to approve or reject projects that run through their waters.
The Trump administration sought to limit that authority, a decision that came after Democrat-led states used the law to block two major projects: a coal shipping port in Washington state and a pipeline that would have run between Pennsylvania and New York.
In addition to the change regarding pollution, the Biden administration also said its rule encourages “early engagement” between industry and the states or tribes.
It would do so by enabling states and tribes to meet with companies who are trying to get a project approved before the clock starts on the one-year deadline to make a decision. (1)
Here’s the propaganda spewed by the EPA to celebrate it’s lawlessness:
Today, the U.S. Environmental Protection Agency (EPA) announced a final rule to restore the fundamental authority granted by Congress to states, territories, and Tribes to protect water resources that are essential to healthy people and thriving communities. The agency’s final Clean Water Act Section 401 Water Quality Certification Improvement Rule will support clear, efficient, and focused water quality reviews of infrastructure and development projects that are key to economic growth.
“The Biden-Harris Administration is committed to supporting economically secure, healthy, and sustainable communities” said EPA Administrator Michael S. Regan. “To achieve this goal, we must protect our water resources while also making investments that move our nation forward. With EPA’s final Clean Water Act Section 401 rule, we are affirming the authority of states, territories, and Tribes to protect precious water resources while advancing federally permitted projects in a transparent, timely, and predictable way.”
“Clean water is critical to the health and success of our communities,” said North Carolina Governor Roy Cooper. “This rule will help provide North Carolina with the ability to protect our water quality and strengthen our infrastructure.”
“Section 401 of the federal Clean Water Act gives states and Tribes an important role regarding federally licensed or permitted projects. As Attorney General, I stood up to efforts to undermine this and now, as Governor, I’m grateful to see it restored,” said Massachusetts Governor Maura Healey. “Massachusetts thanks the U.S. EPA for strengthening the partnership envisioned by the Clean Water Act with today’s rule, helping us fulfill our commitment to protecting waterways across Massachusetts.”
“Connecticut is very happy to see EPA release this final rule,” Connecticut Governor Ned Lamont said. “We thank EPA for partnering with states to protect our vital water resources while enabling us to move forward quickly on our critical infrastructure projects.”
“EPA’s action will better protect New Mexico’s water quality at a time when federal and state protections are needed most,” said New Mexico Governor Michelle Lujan Grisham. “New Mexico must do all it can to protect our most precious resource – our water.”
“In my state, clean water is the keystone of our economy – from tourism to seafood to small business growth,” said Maryland Governor Wes Moore. “I applaud the Biden Administration’s commitment to working in partnership with state leaders to protect our waters from harmful pollution. By collaborating across all levels of government, we will build cleaner and more economically vibrant communities that benefit everyone for decades to come.”
“DEC applauds the Biden-Harris Administration and EPA Administrator Regan for continuing to prioritize the protection of water quality and giving states a critical role in protecting our natural resources,” said New York State Department of Environmental Conservation Commissioner Basil Seggos. “New York State will fully review the final requirements announced today and continue working with EPA to further implement this and other proven Clean Water Act initiatives.”
“This new rule will allow states to fulfill the role Congress established for them in the Clean Water Act to protect water quality within their borders,” said Laura Watson, director of the Washington Department of Ecology. “I applaud EPA’s willingness to work with states and restore the partnership that Congress designed.”
“The Clean Water Act has been a valuable tool for states to protect their waters,” said Environmental Council of States Executive Director Ben Grumbles. “We appreciate EPA’s renewed engagement under section 401 and will continue to strive for regulatory partnerships that safeguard states’ rights and clean water.”
For 50 years, the Clean Water Act has protected water resources that are essential to thriving communities, vibrant ecosystems, and sustainable growth. This final rule strengthens that foundation while recognizing the essential partnership among the federal government, states, territories, and Tribes in protecting our waters.
Clean Water Act Section 401 enables states, territories, and authorized Tribes to protect their water quality from adverse impacts of construction or operation of federally permitted projects. Under Section 401 of the Act, a federal agency may not issue a license or permit to conduct any activity that may result in any discharge into a water of the United States, unless the appropriate state, territory, or authorized Tribe issues a CWA Section 401 water quality certification or waives certification. EPA’s 2023 rule realigns the scope of Section 401 certification with decades of established practice and restores and strengthens the role of states, territories, and authorized Tribes.
The rule enhances certification review and provides regulatory certainty to advance federally permitted projects. For example, the rule establishes a 6-month default timeframe (when the federal agency and certifying authority fail to reach an agreement) and a 1-year maximum timeframe for certification review (the statutory maximum). The rule emphasizes that states, territories, and Tribes may only consider the adverse water quality-impacts from the activity. To limit delays, the rule also provides a clear approach to defining the required contents in a request for certification. (2)
Copy of the massive 406-page revision to the Clean Water Act Section 401 rule:
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(1) Washington (DC) The Hill (Sep 14, 2023) – Biden administration gives states more authority to block pipeline projects
(2) U.S. Environmental Protection Agency (Sep 14, 2023) – EPA Issues Final Rule to Strengthen Water Protections, Support Clear and Timely Reviews of Infrastructure and Development Projects
The US is becoming medieval Europe where micro political entity’s negate all change other than decline.