Biden’s EPA aims to erase Trump-era rule keeping states from blocking energy projects

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The Biden administration on Thursday proposed undoing a Trump-era rule that limited the power of states and Indigenous American tribes to block energy projects like natural gas pipelines based on their potential to pollute rivers and streams.

The Clean Water Act allows states and tribes to review what effect pipelines, dams and other federally regulated projects might have on water quality within their borders.

The Trump administration sought to streamline fossil fuel development and made it harder for local officials to block projects.

The Biden administration’s proposed rule would shift power back to states, tribes and territories.

The administrator of the Environmental Protection Agency (EPA), Michael Regan, said the draft regulation would empower local entities to protect water bodies “while supporting much-needed infrastructure projects that create jobs”.

The Trump-era rule required local regulators to focus reviews on pollution projects might discharge into rivers, streams and wetlands. It also rigidly enforced a one-year deadline for regulators to make permitting decisions. Some states lost authority to block projects based on allegations they missed the deadline.

Now, the EPA says states should have the authority to look beyond pollution discharged into waterways and “holistically evaluate” impacts on local water quality. The proposal would also give local regulators more power to ensure they have the information they need before facing deadline pressure over a permit.

The public will have an opportunity to weigh in on the EPA proposal. The final rule isn’t expected to take effect until spring 2023. The Trump-era rule remains in effect.

The proposal is the latest move by the Biden administration to tighten regulations loosened under Donald Trump, who argued that states were improperly wielding the Clean Water Act to block fossil fuel projects.

New York has used review authority to deny certain natural gas pipeline projects. Washington refused to issue a permit for a coal export terminal in 2017.

In 2020, EPA officials said the Clean Water Act shouldn’t be used to hold infrastructure projects hostage and finalized its rule curtailing state and tribal power.

The Trump rule was challenged in federal court by environmental groups and states. Oil and gas industry groups and predominantly Republican-led states defended it.

The rule was tossed by a federal judge but in April the supreme court reinstated it. The three liberal justices and the chief justice, John Roberts, dissented, saying supporters of the rule hadn’t shown that they would be sufficiently harmed by the lower court ruling.

Energy projects like natural gas pipelines that cross state lines must be reviewed by federal agencies. The Clean Water Act says if a project discharges material into federally regulated waters, states, territories and tribes have the right to review whether those discharges are lawful.

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