Ariel Wittenberg, E&E News reporter
Greenwire: Friday, June 7, 2019
EPA says it can issue federal permits for projects, including pipelines, regardless of whether states raise questions about impacts to climate change or air pollution.
Section 401 of the Clean Water Act gives states the right to “certify” that projects requiring federal permits comply with both the act and their water quality standards. That means projects being permitted federally by EPA, the Army Corps of Engineers or the Federal Energy Regulatory Commission also must be approved, denied or approved with conditions by states.
In recent years, New York and Washington have used this certification process to deny permits for pipelines and coal terminals not just due to water quality concerns, but also because of their contribution to air pollution and climate change.
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Guidance issued today by EPA seeks to limit that practice. The guidance is meant as a stand-in while EPA works on formal regulations.
The guidance itself doesn’t carry the rule of law, and therefore states are not bound by it. But it serves as a significant warning shot. States that ignore EPA guidance could well find themselves in court, either fighting EPA for ignoring their certification decisions or fighting with industry.
It says that state certifications should be limited to water quality issues and standards described in the Clean Water Act.
If a state tries to deny a permit or place conditions on it unrelated to water quality, EPA says federal agencies should discuss whether the state has waived its right to certify the project and allow the permit to proceed anyway.
“Though Section 401 envisions a robust state and tribal role in federal permitting and licensing process, it places limitations on how that role may be implemented to maintain an efficient permitting process within the overall cooperative federalism construct established by the (Clean Water Act),” EPA wrote.
The guidance document also limits how much time states have to make their certification decisions.
The Clean Water Act itself gives them up to a year but does not say whether that timeline begins once a permit application has been received or once a state deems it has enough information to make a decision.
