June 3, 2022 Why the EPA’s New Clean Water Act Rule Could Help Fight Climate Change

The White River weaves through the landscape near where the proposed Keystone XL pipeline would pass on October 13, 2014 south of Presho, South Dakota. Credit: Andrew Burton/Getty Images
The White River weaves through the landscape near where the proposed Keystone XL pipeline would pass on October 13, 2014 south of Presho, South Dakota. Credit: Andrew Burton/Getty Images

The Environmental Protection Agency advanced its plans on Thursday to reverse a Trump-era rule that curtailed the right of states and tribes to block natural gas pipelines, coal terminals and other energy projects that potentially threaten their rivers and lakes. But the decision could also have broad implications in the fight against climate change, as a paralyzed Congress continues to thrust the burden of drastically reducing the nation’s emissions onto states.

While Section 401 of the Clean Water Act has traditionally been used to protect state and tribal waterways from pollution, regulators have more recently begun to use that provision to bolster their arguments aimed at blocking fossil fuel projects they say are in direct conflict with state climate laws. 

In 2019, Washington state cited climate change among its reasons for blocking a proposed terminal that would have shipped coal overseas. And in 2020, New York regulators cited similar concerns when they rejected a pipeline that would have delivered natural gas into the state from Pennsylvania. Those moves infuriated the fossil fuel industry, which had been complaining about cumbersome environmental regulations for years and accused states of abusing their power in the pursuit of a political agenda.

The Trump administration reacted by altering Section 401 in 2020. Trump officials imposed strict new deadlines that forced states to approve projects within a year or waive their right to block them. They also limited what could be considered as “harm” to waterways, forcing regulators to focus on pipeline leaks and other “point source pollution,” rather than broader environmental threats like climate change.

In fact, Andrew Wheeler, the EPA administrator under President Trump and a former oil lobbyist, proudly pointed to state climate efforts when he announced the regulatory changes back in 2020. “Now you won’t be able to use 401 in the future going forward citing climate change as the reason,” Wheeler told reporters in the press call, adding that states could no longer “hold the nation’s energy infrastructure hostage.”

Thursday’s draft rule could reverse many of the changes imposed under Trump, returning a useful tool to states and tribes that have taken on an outsized role in fighting climate change amid federal gridlock, said Adam Carlesco, a staff attorney for the environmental group Food and Water Watch.

“Given the opposition of certain fossil fuel-funded senators to any form of legislative climate action, certain states are still at the forefront of the fight,” Carlesco told me in an interview. “That said, there is potential for this rule to empower states in their fight against climate change.”

But regulators using Section 401 to advance their climate goals must use the provision “intelligently” by fully documenting how fossil fuel projects harm state and tribal waters, not just relying on the climate argument, Carlesco added.

Despite Democrats holding slim majorities in both chambers of Congress and a sitting Democratic president, lawmakers have failed to pass national climate legislation—mostly because of vocal opposition from the party’s most conservative member, West Virginia Sen. Joe Manchin. 

As part of rejoining the Paris climate accord, President Biden has set a goal of slashing U.S. emissions in half by 2030. But it’s unclear how that goal can be achieved without a federal climate law, and new research indicates that the country is far behind other nations when it comes to following through on its climate commitments.

On Wednesday, an annual report that evaluates the progress of 180 countries on their environmental and climate efforts, ranked the United States 43rd—a particularly low score considering that the U.S. is the largest historical contributor to global warming. When compared to other wealthy nations, the U.S. scored even lower, ranking 20th out of 22, the index compiled by Yale and Columbia universities found.

Considering climate change in the nation’s future water and energy planning is also pertinent to the ongoing drought in the West, as states like California, Utah and Arizona all struggle to manage their quickly dwindling water supplies. Last month, federal officials took unprecedented steps to safeguard the already record-low levels of water flowing through the Colorado River Basin.

Still, environmental advocates celebrated Thursday’s announcement, saying it was the first step to removing a highly problematic environmental regulation. Many legal scholars have said Trump’s 2020 rule not only goes against a past Supreme Court decision, but also disregards a 50-year precedent of deferring to states to enforce the Clean Water Act.

The draft rule will now go through a public comment period and won’t be finalized until 2023, according to the EPA. And many details, including whether states and tribes can consider broader environmental harms like climate change, have yet to be decided. Until then, Carlesco said he’ll be watching the process closely. “I’m certainly feeling more optimistic than I was under the prior Section 401 rule but keep my skepticism,” he said.

That’s it this week for Today’s Climate. Thanks for reading, and I’ll be back in your inbox on Tuesday.

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