Activists ‘Hijack’ Clean Water Act to Block Energy Projects

Published September 28, 2018

Environmental activists who say the production and use of fossil fuels is causing climate change are encouraging states to use their water quality review authority to delay or block new energy infrastructure projects.

Among the activists’ targets are natural gas pipelines, export terminals for liquefied natural gas (LNG), and coal export terminals.

Convoluted Permitting Process

Infrastructure projects that cross federal lands or federally regulated waterways must obtain a variety of permits and licenses.

Section 401 of the 1972 Clean Water Act (CWA) requires builders to obtain a discharge permit to dispose of waste materials. CWA grants state environmental agencies the authority to review projects’ disposal applications to determine whether the proposed project comports with state water quality standards. Once the state agency determines the project complies with state requirements, the agency certifies compliance to a federal agency, which then issues the water quality permit, often the final step before construction begins.

Historically, state environmental agencies have granted water quality certificates (WQC) fairly quickly because the projects have already received preliminary approval from multiple agencies.

Led by Daniel Estrin, general counsel and advocacy director for the Waterkeeper Alliance, anti-fossil-fuel activists are increasingly urging state officials not to certify fossil-fuel-related projects, delaying action by the Federal Energy Regulatory Commission (FERC) to authorize construction.

In an interview with National Public Radio’s All Things Considered, Estrin said he was looking for a new way to stop a pipeline in New York, which he found in Section 401 of the Clean Water Act, saying, “[I]t essentially gives states veto power over federal decisions.”

States Denying Water Permits

Activists have successfully used the tactic in Northeastern and West Coast states.

In 2017, for example, the New York Department of Environmental Conservation denied a WQC for National Fuel Gas Company’s Northern Access project, which would expand the Empire and National Fuel Supply systems to move gas from northwestern Pennsylvania to markets in New York, Canada, the Northeast, and the Midwest.

In mid-August 2017, FERC determined New York had waived its authority to issue a WQC for the pipeline by failing to act within the one-year timeframe required by CWA, giving National Fuel the hope the project can soon move forward.

New Jersey’s environmental regulators have yet to issue a WQC for the proposed 115 mile PennEast Pipeline intended to move natural gas from the Marcellus Shale deposits in Pennsylvania to New Jersey, despite FERC having approved the pipeline in January 2018.

In Oregon, anti-fossil-fuel activists formed the No LNG Exports campaign to lobby the state to halt the Jordan Cove project, which includes a planned pipeline to transport natural gas across the Cascades mountain range to the Oregon coast, where it would be turned into LNG for export. The No LNG Exports campaign submitted more than 25,000 comments to Gov. Kate Brown and the Oregon Department of Environmental Quality to halt the project, many calling for the state to deny a WQC for the pipeline.

Sees a Double Standard

Anti-fossil-fuel activists have a double standard when it comes to approving energy projects, proving their goals are not really about protecting the environment, says James Taylor, a senior fellow with the Heartland Institute, which publishes Environment & Climate News.

“It is ironic and revealing the same environmental-left activists who conjure up any possible justification to block conventional energy projects look the other way and demand fast-track approval when wind and solar projects are proposed that do equal or worse damage to the environment,” Taylor said. “Ultimately, these objections have nothing to do with protecting and providing good stewardship to the environment, but are instead convenient means of waging their larger war on all energy sources that are not wind and solar power.”

U.S. Senate Proposes Fix

On August 16, 2018, the U.S. Senate Committee on Environment and Public Works conducted a legislative hearing on S. 3303, the Water Quality Certification Improvement Act of 2018. Committee chairman and bill sponsor Sen. John Barrasso (R–WY) said S. 3303 is necessary because some states are misusing the CWA to obstruct projects.

Barrasso’s bill would clarify state WQC reviews are limited to water-quality impacts only. Concerns about climate change or other potential environmental problems arising from a project would not be an acceptable reason to delay or deny a WQC. Barrasso’s bill would also require states to inform applicants within 90 days if the government needs more information before issuing a permit.

“Recently, a few states have hijacked the water quality certification process in order to delay important projects,” said Barrasso at the hearing, citing Washington state’s refusal to grant a water quality certificate for the Millennium Bulk Terminal project, which would enable coal from the western United States to be exported to Asia.

“The state of Washington has abused their authority to block the export of coal mined in Wyoming, Utah, Colorado, and Montana,” Barrasso said.

Activists Harming Environment

Barrasso says the obstruction of the project is bad for the environment.

“Washington state’s refusal to issue the permit is not just bad for our economy, it’s also bad for the environment,” said Barrasso. “Wyoming produces the cleanest-burning coal in the United States in a sustainable and safe manner.

“By refusing to allow Wyoming to export its coal, the state of Washington is pushing these Asian markets to use coal from non-American sources, sources that are not as clean or safe,” Barrasso said.

Joe Barnett ([email protected]) writes from Arlington, Texas.

Official Connections

Sen. John Barrasso (R–WY):;

Oregon Gov. Kate Brown:;