Legal Battles Over Pipelines Deluge U.S. Legal System With Questions Of Authority

摘要

We are in the midst of a flood! Not literally, but there are overwhelming legal and regulatory issues involving water and industry: the scope of Section 401 permits allowing for pipeline stream crossings, the use of Nationwide Permit 12, and the legal challenges to the Navigable Waters Protection Rule (NWPR), defining the scope of Waters of the United States. Pipeline permitting requires companies to obtain water crossing permits from affected states. Some states, notably New York and Washington, used the permits, granted under Section 401 of the Clean Water Act, as a tool to block fossil fuel infrastructure development. New York's refusal to grant a 401 permit to Constitution Pipeline resulted in the project's demise after an eight-year battle. As part of its efforts to promote American energy development, the Trump administration issued Executive Order 13868 in April 2019, which directs the U.S. Environmental Protection Agency to review Section 401 and EPA's related regulations and guidance to determine whether the agency's policies should be updated or clarified. In response, EPA announced a final rule on June 1, 2020. EPA Administrator Andrew Wheeler stated, "EPA is returning the (CWA) certification process under Section 401 to its original purpose, which is to review potential impacts that discharges from federally permitted projects may have on water resources, not to indefinitely delay or block critically important infrastructure."