Trump Administration Blocks Tribes From Protecting Their Waters
NPR reported earlier this month that the Trump administration is removing a tool some states have used to block construction of new fossil fuel infrastructure, such as oil pipelines, by weakening Section 401 of the Clean Water Act.
Jim Murphy, senior counsel for the National Wildlife Federation’s Climate and Energy Program, argued in a recent op-ed in The Hill that the move also blocks tribes from protecting their waters.
Murphy wrote that the rule “ties the hands of states and tribes wishing to protect their waters from projects like pipelines, dams and coal terminals that go through the federal permitting or licensing process.”
Section 401 of the Clean Water Act “gives states and tribes the authority to review and potentially block or place conditions on federally permitted projects that could harm water quality from impacts like oil spills, nutrient pollution that can contaminate drinking water, loss of adequate flow for wildlife or habitat destruction or disturbance.”
Murphy outlined several ways the change will hamper tribes’ ability to protect their waters.
“First, the rule restricts the period of time that states and tribes have to analyze proposed projects,” he wrote. “It gives the federal agencies wide latitude to put tight time limits on states or tribes to examine complex issues.”
The rule changes also “effectively allows the applicant — the pipeline company or the mining firm, for example — to determine when the clock starts ticking, which Murphy said “will incentivize applicants to provide as little information as they can get away with and then start the process, requiring the states and tribes to spend their limited time trying to gather the information they need.”
If states or tribes are unable to take action in time, “certification authority is waived and the applicant can move ahead regardless of state or tribal concerns.”
The rule also limits “the scope of review to projects that result in discharges from ‘point sources,’” which Murphy said “thumbs its nose at” a 2006 Supreme Court ruling “that state and tribal authority to review projects that affect water quality is broader than that.”
Likewise, the new rule “takes a swipe at a 1994 Supreme Court decision, PUD No. 1 v. Washington, where Justice O’Connor’s majority opinion found that the Clean Water Act allows states and tribes to place limits or conditions on the entire proposed activity associated with constructing the dam, mine, pipeline or other project, not just the materials that would be intentionally dumped in the water.”
Lastly, Murphy said the rule “gives federal agencies the power to effectively overrule or ignore state or tribal decisions they disagree with,” which he described as “an expansion of federal power that clearly defies the intent of the Clean Water Act.”
Murphy noted that the rule is likely to spur a legal fight but concluded,
[T]his rule, along with a rule excluding half the nation’s streams and wetlands from federal pollution protections, a recent executive order seeking to use the pandemic to excuse countless projects from full review under environmental laws, and scores of other initiatives, have put our public health and natural resources under a threat level we haven’t experienced in decades.