Republican States Challenge EPA's Pipeline Veto Power Expansion in Federal Lawsuit
(Reuters) — A group of 11 Republican-led states and energy industry groups have challenged a U.S. Environmental Protection Agency rule that bolsters state and tribal veto power over pipelines and other major infrastructure projects that might pollute rivers and streams.
In a lawsuit filed in federal court in Lake Charles, Louisiana on Monday night, Louisiana, West Virginia, Wyoming and others argued the EPA's September rule revising the Clean Water Act's permitting process to let states and Native American tribes block projects over a wider range of expected impacts to water resources exceeded the agency's authority under the law and asked the court to vacate it.
The plaintiffs, which included fossil fuel industry group the American Petroleum Institute, warned the rule will increase the workload of state agencies reviewing projects and would thwart efforts to develop critical energy infrastructure like natural gas export terminals, carbon capture projects and pipelines.
The EPA declined to comment on Tuesday.
The rule, which went into effect last month, made changes to the Clean Water Act Section 401 certification process by expanding the ability of states and Native American tribes to block projects within their borders over concerns about their broad impact on water resources, including impacts to fish habitat or impacts from runoff. It reversed a 2020 decision by the Trump administration limiting state and tribal reviews to direct discharges of pollution only.
Under Section 401, federal agencies cannot issue permits for major projects unless local regulators first issue water quality certificates, or waive their authority to do so.
In their lawsuit, the plaintiffs argued the text of the section only establishes authority for states and tribes to review pollution from direct discharges into state waterways, not overall water quality impacts.
The Trump administration had been focused on fast tracking big energy projects and set its sights on the Section 401 process after states like New York, Washington and Oregon used it to block major pipeline proposals, liquefied natural gas and coal export terminals and other projects.
The Biden administration has said that the changes realigned the scope of the permitting process with “decades of established practice” and restored the role of states, tribes and U.S. territories in the permitting process.
The case is State of Louisiana et al. v. U.S. Environmental Protection Agency et al., U.S. District Court for the Western District of Louisiana, case No. 2:23-cv-01714.
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