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Trump Finalizes Environmental Review Revisions

Friday, July 17, 2020

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Earlier this week, President Donald J. Trump announced that his administration has finalized changes to the National Environmental Policy Act that aim to not only reduce the number of projects that require federal review, but also narrow the scope considered under those reviews.

The action comes after Trump signed an Executive Order last month advising federal agencies to expedite infrastructure investments and other activities as to accelerate the United States’ economic recovery from the COVID-19 pandemic.

Past Regulation Cuts

This isn’t the first time Trump has pushed big new infrastructure projects to boost the economy. Last year, Trump issued Executive Order 13868 on “Promoting Energy Infrastructure and Economic Growth.”

In the order Trump writes, “To enable the timely construction of the infrastructure needed to move our energy resources through domestic and international commerce, the Federal Government must promote efficient permitting processes and reduce regulatory uncertainties that currently make energy infrastructure projects expensive and that discourage new investment.”

Trump goes on to note on the nation’s current policy to promote private investments in energy infrastructure, water quality certifications, safety regulations, renewals and authorizations, in addition to other environmental, social and governance issues.

Specifically, the order covers Section 401 of the Clean Water Act, which provides that States and authorized Tribes have a direct role in Federal permitting and licensing processes to ensure that activities subject to Federal permitting requirements comply with established water quality requirements.

However, Trump notes that the section is outdated—having been enacted in 1948 and significantly reorganized in 1972—and causes confusion and uncertainty, thus hindering the development of energy infrastructure.

In his order, Trump advised that U.S. Environmental Protection Agency Administrator Andrew Wheeler consult with States, Tribes and relevant executive departments and agencies in reviewing the section, along with the EPA’s related regulations and guidance to determine whether any provisions thereof should be clarified to be consistent with redefined policies in the order.

By January, the Trump administration announced that it had finalized a rule to remove environmental protections from ephemeral bodies of water—meaning bodies of water that only form after rainfall or only flow part of the year. However, the revision also applies to streams, wetlands, groundwater, waste treatment systems and priorly converted cropland and farm watering ponds.

According to PaintSquare Daily News, the ruling affects the roll back of nearly 95 environmental rules and is slated to be replaced by Trump’s “Navigable Waters Protection Rule.” Both the EPA and the U.S. Army hosted a public webcast for the public to help explain the rule’s key elements in February.

That same month, the EPA stated that it would be reducing the number of waterways receiving federal protection under the Clean Water Act. While the decision has reportedly pleased farmers, fossil fuel producers and real estate developers who previously disagreed with Obama-era rules, 14 states have sued the EPA regarding the change, claiming that the decision ignores science, legislation and removes basic protections under the CWA.

As a result of the announcement, in April, the Natural Resources Defense Council, along with its partners, filed a lawsuit against the U.S. Environmental Protection Agency and the Army Corps of Engineers over the Navigable Waters Protection Rule.

According to the NRDC, the Navigable Waters Protection Rule—which the council refers to as the “Dirty Water Rule”—excludes millions of miles of rain-dependent streams and millions of acres of flood-preventing, pollution-trapping wetlands from safeguards outlined in the CWA.

In the lawsuit, both the EPA and the Corps have been accused of violating the Administrative Procedure Act and the CWA when promulgating the Navigable Waters Rule.

The violations are specifically pointed to the agencies’ disregard for the Navigable Waters Rule’s impacts on the integrity of the nation’s waters, which removes protections for waters and overlooks science-based findings reported in the CWA.

By the beginning of last month, however, the EPA had announced that the agency issued another rule that would both promote the construction of energy-based infrastructure projects and protect waterways across the nation.

According to Wheeler, the final rule moves to “curb abuses of the Clean Water Act that have held our nation’s energy infrastructure projects hostage, and to put in place clear guidelines that finally give these projects a path forward.”

With the updated ruling, states are now no longer able to use the law to object to projects “under the auspices of climate change.” The final rule now:

  • Specifies statutory and regulatory timelines for review and action on a Section 401 certification—requiring final action to be taken within one year of receiving a certification request;
  • Clarifies the scope of Section 401, including clarifying that 401 certification is triggered based on the potential for a project to result in a discharge from a point source into a water of the United States. When states look at issues other than the impact on water quality, they go beyond the scope of the Clean Water Act;
  • Explains EPA’s roles under Section 401;
  • Reaffirms the agency’s statutory responsibility to provide technical assistance to any party involved in a Section 401 water quality certification process; and
  • Promotes early engagement and coordination among project proponents, certifying authorities and federal licensing and permitting agencies.

However, issuing the final rule wasn’t favored among all. According to reports, many Democrats and environmental groups oppose the ruling, as the original Section 401 of the Clean Water Act was critical in protecting state drinking water quality. In addition, the final rule will also burden states with limited resources in conducting project evaluations in reduced time restrictions.

Mostly recently, on June 4, Trump’s “EO on Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities” aimed to waive requirements imposed by laws such as the Endangered Species Act, the National Environmental Policy Act and the Clean Water Act, among others.

What Now

“Today’s action is part of my administration’s fierce commitment to slashing the web of needless bureaucracy that is holding back our citizens,” Trump said in a speech at the UPS Hapeville Airport Hub in Atlanta.

The final rules don’t deviate much from the proposals in January, and note that federal agencies no longer have to factor in “cumulative impacts” of a project, such as impacts on the environment or climate.

It also keeps the proposals of a two-year deadline for environmental impact statements and a one-year deadline for other environmental assessments. The rule also changes standards for commenting on judicial review, adding that any comment must also give negative economic and employment impacts of a project alongside any environmental concerns.

Energy and gas sectors applaud the rules, with American Gas Association President and CEO Karen Harbert saying, "A reformed permitting process will enable natural gas utilities to continue to deliver affordable and clean natural gas which will be essential for our nation's economic revival and achieving our shared environmental goals."

The wind sector supports the new review deadlines, according to American Wind Energy Association Senior Vice President of Government and Public Affairs Amy Farrell, but is overall opposed to limiting the review of environmental impacts.

Environmental Protection Agency Administrator Andrew Wheeler defended the policy saying "It does not address any of the underlying regulations or policies, those are all still in place. The main factor is it puts a two year timeframe. If we can't work through the issues around a project within two years, then that's a problem because the private sector does that all the time.”



Tagged categories: Environmental Protection; EPA; EPA; Good Technical Practice; Government; NA; North America; President Trump; Regulations

Comment from Andrew Piedl, (7/17/2020, 9:44 AM)

With all these regulation cuts, where are the infrastructure projects?

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