Enviros Decry Fed Rule Change that Limits States’ Say over Energy Projects

The EPA move could be significant for NJ; it will curtail power of states to cite water-quality concerns in review of new pipelines, fossil-fuel proposals
Credit: (AP Photo/Matt Rourke, File)
File photo: At the construction site of a natural gas pipeline

The federal government has blunted a regulatory tool that allowed states to block proposed energy projects like new natural-gas pipelines and other fossil-fuel projects over fears they could jeopardize water quality.

In a rule adopted Monday, the U.S. Environmental Protection Agency (EPA) scaled back the scope of state and tribal review of permits under Section 401 of the Clean Water Act.

The issue is significant in New Jersey where critics of the expansion of natural-gas infrastructure have frequently cited water-quality impacts in opposing pipeline projects here, including a $1 billion pipeline under Raritan Bay rejected by both the Garden State and New York earlier this month.

New York used the so-called 401 permitting process to block construction of a 120-mile Constitution pipeline there.

But President Trump and allies in the oil and gas industries have criticized states for expanding the scope of 401 reviews to include such things as climate-change impacts while unnecessarily delaying review of projects that proponents say are in the public interest.

“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 put in place clear guidelines that finally give these projects a path forward,’’ said EPA Administrator Andrew Wheeler.

‘Dangerous mistake’

Jon Devine, director of federal water policy at the Natural Resources Defense Council advocacy group, said the Trump administration’s rule guts states’ and tribes’ authority to safeguard their waters.

“This is a dangerous mistake. It makes a mockery of this EPA’s claimed respect for ‘cooperative federalism,’‘’ he said.

Jeff Tittel, director of the New Jersey Sierra Club, argued the rule change limits the time and tools states have to evaluate the impact federally permitted projects have on the state’s waterways. The rule sets up a new one-year time frame to approve or reject energy infrastructure projects.

“Trump’s rule makes it easier for fossil fuel projects like the PennEast pipeline project and others to be built,’’ Tittel said.

PennEast — a 120-mile pipeline, beginning in Luzerne, Pa., and ending in Mercer County — has spurred widespread opposition on both sides of the Delaware River. The company has been trying to build the project for nearly five years, an example of how protracted the approval process can be.

Coincidentally, the New Jersey attorney general and the New Jersey Conservation Foundation this week filed briefs with the U.S. Supreme Court asking the justices to deny an appeal by PennEast of a unanimous federal appeals court decision last year. That ruling denied the company’s efforts to access 49 parcels of state-protected land through condemnation proceedings.

“Make no mistake about it,’’ agreed Doug O’Malley, director of Environment New Jersey, referring to the narrowing of the scope of state involvement in the 401 process. “It’s an attempt by EPA to take power away from states.’’

Others said the impact in New Jersey of the rule change might be limited because the state has such a strong wetlands permitting program under the Clean Water Act. New Jersey is one of only two states to have regulatory oversight over protecting wetlands.

“New Jersey is sort of insulated from these changes,’’ said Tom Gilbert of the New Jersey Conservation Foundation. “We don’t see it having such a big impact on New Jersey’s permitting authority.’’

Perhaps more significantly, Gilbert noted the rule change, much like other Trump administration rollbacks of environmental laws, will be the “subject of massive litigation.’’