New Rule to Limit State Government Abuse of Clean Water Act for Climate Activism


Making good on a promise made in an April 10th Executive Order entitled Promoting Energy Infrastructure and Economic Growth, the Environmental Protection Agency has proposed a rule restricting states from abusing the Clean Water Act to pursue a climate agenda. 
Section 401 of the Clean Water Act gives states whose waters may be adversely affected by a project the authority to block it for failing to comply with water quality protections in the statute. However, in recent years this provision has been employed by some states to veto projects, not for any water quality reasons, but in order to block fossil-fuel infrastructure projects. 
In particular, the state of Washington used section 401 to block a coal export facility and New York used it to block natural gas pipelines into the state. In both cases, the state rationales were long on climate change rhetoric but short on legitimate water quality concerns. Now, EPA “proposes to conclude that the scope of a section 401 review or action must be limited to considerations of water quality,” which makes a lot of sense for a law called the Clean Water Act.