The Supreme Court recently reinstated a Trump administration Clean Water Act order that helps prevent states from using reasons other than water quality, like climate change, to block critical infrastructure and energy projects.
The rule, which specifically addresses states’ misuse of Section 401 of the Clean Water Act, remains in effect pending litigation.
First, some background information about the rule. Congress made it clear in the Clean Water Act that states are expected to take a leadership role in tackling water pollution. Section 401 of the law is a great example of how the law reflects this respect for federalism.
As explained by the Environmental Protection Agency:
Section 401 of the CWA requires that a water quality certification be issued for any federally licensed or permitted project that may discharge into United States waters [by states and authorized tribes] to ensure discharge meets applicable water quality requirements.
Therefore, states can use the Section 401 certification process to ensure that federally permitted activities do not affect state water quality.
But in recent years, some states have abused this process to address issues unrelated to water quality, which in turn has delayed or blocked critical projects.
For example, in 2017 Washington state deployed Section 401 to block the proposed Millennium Bulk terminal project, a major coal export facility along the Columbia River that would support the export of coal to Asia.
In denying Section 401 certification, the state relied heavily on factors unrelated to water, such as: B. Vehicular traffic, train noise and railway safety.
The Trump administration’s Section 401 rule requires states to focus only on water quality requirements and not use the process to meet other state goals, such as addressing climate change.
Why is the rule important? If it persists, it will help remove many inappropriate, government-imposed barriers to critical projects. And the need for these projects, particularly in the energy space, is more important than ever.
In introducing legislation that would codify the Trump Rule, Senator Richard Shelby, R-Ala., noted, “Today more than ever, industrious … Americans are faced with rising energy commodity prices … [and] This legislation would support American household checkbooks and adequately protect infrastructure projects in our energy and development sectors.”
Sen. Kevin Cramer, RN.D. echoed similar concerns, noting:
For too long, Section 401 of the Clean Water Act has been used by liberal, activist states to hijack energy infrastructure and sabotage energy-producing states like North Dakota without legitimate reason. With energy prices skyrocketing, it’s high time to provide much-needed regulatory certainty and guard rails to prevent future abuse.
The senators were both right, and prices have only gotten worse since they were declared.
The inflation numbers just released are stunning. Annual inflation was 8.5% in March, the highest increase in over 40 years.
Then there are the prices Americans pay at the pump.
Regular gasoline retail prices had already increased by 48% from the week ended January 25, 2021 (when President Joe Biden took office) to the week ended February 21, 2022 (three days before the Russian invasion of Ukraine). Gas prices are currently over $4 per gallon and in some areas of the country exceed $5 per gallon.
The Trump administration’s Section 401 rule can help unleash American energy and fuel economic growth. Project developers don’t have to deal with Section 401 abuses, and as prices soar, these projects can provide important breathing space for American families.
Unfortunately, as early as last year, the Biden administration had begun developing its own Section 401 rule, almost certainly reversing key provisions of the Trump rule. The public should raise their voice during the regulatory process and submit comments urging administrators not to take this action.
The Biden administration’s message to revise the Trump rule minimizes the benefits of the just-reintroduced rule. It signals that Section 401 abuse could return and creates greater unpredictability beyond the pending litigation hanging over the rule.
Rather than revising the rule, the EPA should make it clear to the Biden administration that the Trump rule remains in place. This would be an important signal that economic growth, infrastructure and energy abundance are not being hampered by abuse of the Clean Water Act.
But given the Biden administration’s energy war and its environmental extremism, such action might admittedly be a pipe dream. Therefore, Congress needs to deal with this issue.
By codifying the Trump administration’s Section 401 requirement into law, such as through the Section 401 Certification Act, Congress would provide much-needed predictability and eliminate Section 401 abuse.
This would be just one important step of many that policymakers must take to remove harmful regulatory barriers and implement measures that would promote energy abundance and economic recovery.
This piece originally appeared in The Daily Signal
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