On July 13, attorneys for four environmental organizations, filed a lawsuit in the U.S. District Court for the Northern District of California, San Francisco Division against the Federal Environmental Protection Agency (EPA) challenging the Trump Administrations new reforms to the Clean Water Act Section 401 Environmental Certification Rule.   

Environmental Certification refers to an administrative process of obtaining a permit for a pipeline or hydropower project that may discharge into “waters of the United States,” that certifies the project complies with environmental law.

Under the old rules of the Clean Water Act, states and tribes must approve of natural gas, oil, or water pipelines or hydropower facilities that involve discharges into rivers.  Trump’s revised Clean Water Act 401 Certification Rule reduces what environmental issues that state and tribal governments can obstruct a pipeline or energy project for. 

Hostage Price

The new rule is meant to promote Pres. Trump’s mission of  “efficient permitting” and lessening “regulatory uncertainty” of water projects.  U.S. EPA Director Andrew Wheeler issued the following statement in a June 1 news release of the revised rule:

“Today, we are following through on Trump’s Executive Order 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”.   

The prior 50-year-old rule was established under the Nixon administration in 1972 and created a perverse incentive for states, tribes, and recreational fishing organizations to shake down the federal government for freebies unrelated to the magnitude of impacts of the projects themselves.  In fact, the very existence of the environmental organizations filing suit -- American Rivers, American Whitewater, Idaho Rivers United and California Trout and the Western Environmental Law Center -- are dependent on obstructing such projects. While these organizations are non-profit under Section 501 (c) (3) of the Internal Revenue Code, they function as political advocacy groups. 

Bob Nasdor of American Whitewater framed it differently:

“These new regulations are a brazen attack on the Clean Water Act with the goal of undermining the public’s ability to protect our rivers from harmful impacts of federally-licensed energy projects”. 

The purported concern of those opposed to the new rule is that it does not protect local water resources from industrial pollution. However, any pipeline spill or contamination incident would be handled under tort law. And the intent of the original 1972 Act was not to provide recreational tourism and related road improvements for states and tribes whose lands a pipeline incidentally runs through.

“It’s going to be a very quick yes or no” - Trump

Under the new rules, the permitting process for projects under the Clean Water Act would have to be completed in two years instead of dragging on for years with legal obstructions.  Trump said: “It’s going to be a very quick yes or no”. 

The duration of the permitting process for mining industries and oil and gas pipeline companies would be streamlined. 

The recently blocked Dakota Access Pipeline Project, to convey 570,000 gallons of crude oil per day from Bakken oil fields to Pakota, Illinois and, ultimately to Gulf Coast refineries, is an example of the type of project that would benefit from the new ruling.  Construction stared in 2016 and was completed in June 2017.  But Indian tribes are still trying to shake down the EPA for compensation beyond that provided by eminent domain law.

Dakota Access had to condemn strips of land for a pipeline corridor within tribal lands from 23 owners and a coal mine for pipeline rights of way, for which just compensation was offered. Moreover, tribes and states have legal recourse to local eminent domain law courts in any dispute over land values.  The legal issue under eminent domain law is that landowners are only entitled to just compensation for their losses, not what they can gain from holding out or using environmental law to obstruct a public project (see Monongahela Navigation Co. v. United States, 1893; see footnote 636 here).

The complainants want the new rule set aside as “unlawful” and “arbitrary, capricious” and “in excess of statutory jurisdiction” under Sections 701, 704 and 706 of the Administrative Procedures Act. In essence, the complainants believe they can get Trump’s new rule thrown out by the administrative law court (i.e., the deep state) as paramount over eminent domain law and the new narrower scope of Section 401 of the Clean Water Act.

Environmental organizations and law firms, tribes and recreational fishing organizations are all special interest groups of the Democrat Party.

Photo credit: US EPA