EPA to revise Trump rule limiting state authority to block pipelines

The Environmental Protection Agency (EPA) announced on Thursday that it will revise a Trump-era rule that set limits on state and tribal authority to block projects that could impact their waters, such as pipelines. 

Under the Clean Water Act, projects that run through waterways — which can include pipelines and other fossil fuel infrastructure — are essentially subject to state veto. 

This power had come under criticism from Republicans, who argued that it could be used to stall important infrastructure, though its proponents say states need to be able to stop risky projects. 

The Trump rule in question sought to limit the scope of state-required approvals to only those that will impact water quality. It excluded other considerations such as air quality or “energy policy.” 

The rule also made it so that approvals for projects could take less time by making it easier for the federal government to determine a state waived its approval by not acting in time.

In a statement announcing its new revision, the Biden EPA argued that the Trump-era rule “erodes state and Tribal authority.”

“We have serious water challenges to address as a nation and as EPA Administrator, I will not hesitate to correct decisions that weakened the authority of states and Tribes to protect their waters,” said EPA Administrator Michael Regan in the statement. 

In order to undo the Trump rule, the EPA will have to put forward a new one in its place. As part of that process, during which the Trump rule will remain active, the agency is planning to hold listening sessions with stakeholders next month.

When it put the rule forward, the Trump administration argued that it would accelerate infrastructure construction and prevent “abuses” of authority. 

“Today, we are following through on President Trump’s Executive Order to 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,” then-EPA Administrator Andrew Wheeler said in a statement last year. 

That issuance followed instances where Democratic-led states blocked infrastructure proposals. New York had decided not to allow certification of a 124-mile natural gas pipeline, and Washington state blocked a shipping port for coal. 

Prior to the Trump rule, the regulation governing the issue was from 1971.

Mark Ryan, a lawyer who specializes in the Clean Water Act and worked at the EPA for more than 20 years, said that going forward, the Biden administration will need to balance the needs of states and tribes with the needs of companies who receive permits as it puts forth its own regulation.

“It’s tilted very heavily toward the permittees now under the Trump rule, I think they need to tilt it back toward the middle,” Ryan told The Hill.

—Updated at 4:56 p.m.