The Supreme Court recently reinstated a Clean Water Act regulation by the Trump administration that helps to prevent states from using reasons other than water quality, such as climate change, to block critical infrastructure and energy projects.
The rule, which specifically addresses states’ abuse of Section 401 of the Clean Water Act, will remain in place pending litigation.
First, some background on the rule. Congress made it clear in the Clean Water Act that states are expected to take a leading role in addressing water pollution. Section 401 of the statute 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, for any federally licensed or permitted project that may result in a discharge into waters of the United States, a water quality certification be issued [by states and authorized tribes] to ensure that the discharge complies with applicable water quality requirements.
Therefore, states may use the Section 401 certification process to ensure that federally permitted activities don’t harm states’ water quality.
But in recent years, some states have abused this process to address issues that have nothing to do with water quality, which in turn has delayed or blocked critical projects.
For example, in 2017, the state of Washington used Section 401 to block the proposed Millennium Bulk terminal project, a large coal export facility along the Columbia River that would help export coal to Asia.
In denying the Section 401 certification, the state heavily relied upon factors that have nothing to do with water, such as vehicle traffic, train noise, and rail safety.
The Trump administration’s Section 401 rule requires states to focus on water quality requirements only, and not use the process to achieve other state objectives such as addressing climate change.
Why is the rule important? If left in place, it will help to address many inappropriate, state-imposed obstacles to critical projects. And the need for these projects, especially in energy, is more important than ever.
When introducing legislation that would codify the Trump rule, Sen. Richard Shelby, R-Ala., remarked: “Now more than ever, hardworking … Americans are facing rising prices in energy commodities … [and] this legislation would support the checkbooks of American households and properly safeguard infrastructure projects in our energy and development sectors.”
Sen. Kevin Cramer, R-N.D., echoed similar concerns, noting:
For far 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 cause. With energy prices skyrocketing, it’s high time we provide much needed regulatory certainty and guardrails to prevent future abuses.
The senators were both right, and prices have gotten only worse since they made their statements.
Then there’s the prices Americans pay at the gas pump.
Retail prices for regular gasoline already had risen by 48% from the week ending Jan. 25, 2021 (when President Joe Biden took office), to the week ending Feb. 21, 2022 (three days before Russia’s invasion of Ukraine). Currently, gas prices are over $4 per gallon, and in some areas of the country, they exceed $5 per gallon.
The Trump administration’s Section 401 rule can help unleash American energy and promote economic growth. Project developers will not have to deal with Section 401 abuses, and in light of soaring prices, these projects can offer a vital reprieve for American families.
Unfortunately, last year, the Biden administration already had begun the process of coming up with its own Section 401 rule, almost certainly to undo key provisions of the Trump rule. The public should let its voice be heard through the regulatory process, submitting comments telling administration officials not to take this action.
The Biden administration’s message of revising the Trump rule minimizes the benefits of the rule having just been reinstated. It signals that Section 401 abuses might come back and creates greater unpredictability beyond the pending litigation hanging over the rule.
Rather than overhauling the rule, the Biden administration’s EPA should make it clear that the Trump rule will remain in place. This would send an important signal that economic growth, infrastructure, and energy abundance are not going to be hampered through abuse of the Clean Water Act.
But such an action admittedly might be a pipe dream, given the Biden administration’s war on energy and its environmental extremism. This is why Congress needs to address this issue.
By codifying the Trump administration’s Section 401 rule into law, such as through the Section 401 Certification Act, Congress would create much-needed predictability and get rid of Section 401 abuses.
This would be just one important action of many that policymakers need to take to eliminate harmful regulatory barriers and implement policies that would promote energy abundance and economic flourishing.
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