The Trump administration is facing a new lawsuit challenging a rule that hampers state and tribal efforts to block unwanted fossil-fuel projects — specifically, those that could adversely impair water quality within their jurisdictions.
The lawsuit, filed in a federal appeals court in northern California, is the latest seeking to block the rule adopted by the federal Environmental Protection Agency this summer. In July, New Jersey and 19 other states filed a challenge to the agency rule, saying it unlawfully prevents the state from preventing its waters from being polluted.
In New Jersey and elsewhere, the rule narrows the authority of states to impose conditions for approving energy infrastructure projects under Section 401 of the federal Clean Water Act. The provision has prevented New York and other states from blocking pipeline projects they concluded would impair water quality, denying certification for the projects to move forward.
Best chance to block PennEast
Opponents of the PennEast pipline, one of the most controversial pipeline projects pending in New Jersey, view the Section 401 process as perhaps their best tool for blocking the $1 billion, 120-mile project that begins in Pennsylvania and ends in Mercer County.
In the latest litigation on the issue, Earthjustice, the group representing a handful of tribes in the west, and the Sierra Club argue many of the same issues raised by the 20 states in their challenge to the rule, but with a focus on tribal lands in western states.
In its 28-page brief, the parties argued the new rule strips away a crucial tool that the tribes and states had used to protect waters within their jurisdiction, with the aim of prioritizing “environmentally ruinous’’ fossil-fuel infrastructure.
The EPA admitted its primary motivation in proposing and finalizing the rule is a desire to facilitate the construction of fossil-fuel infrastructure, according to the brief. “This purpose is entirely divorced from Congress’ intent in passing Section 401 and the CWA,” it says.
The revision to the rule came after President Donald Trump signed an executive order in April 2019 directing the EPA to issue new regulations for Section 401. Trump and others had criticized states for expanding the use of their review process to unnecessarily delay, and to kill, energy-infrastructure projects.
Trump’s illegal obstruction
“This unlawful rollback from the Trump administration seeks to trample the rights of tribes and states to review and reject dirty fossil-fuel projects that threaten their water,’’ said Earthjustice staff attorney Moneen Nasmith.
“Since Trump’s EPA is taking away states’ and tribes’ ability to protect their clean water, we’re going to court to take it back,’’ said Nathan Matthews, a senior attorney for the Sierra Club.
The Trump administration’s efforts to ease up the regulatory process for business interests has triggered dozens of lawsuits from states, including New Jersey. Last week, the Murphy administration joined 19 other states in challenging rule changes in the National Environmental Policy Act.
The law governs environmental permitting of large infrastructure projects. Environmentalists say the changes could limit public input into major projects, including pipelines and other major developments.