The Environmental Protection Agency on Thursday released a proposed draft rule of Section 401 of the Clean Water Act that would overturn Trump-era changes making it harder for Tribes and communities to fight back against damaging pipeline and infrastructure projects. According to a fact sheet on the proposed draft rule changes, the Water Quality Certification Improvement Rule would allow for more early engagement on proposed projects, allow for additional transparency on projects’ impacts on bodies of water, and offers Tribes, states, and territories more of a voice in the permitting and licensing process.
It’s a big step for the agency, which has struggled under the Biden administration to secure adequate funding and undo much of the damage done during the Trump administration. Under the Trump administration, state and Tribal reviews were severely limited, as was the time during which they could review a project’s impact on bodies of water. Not only was it up to states and Tribes to prove if such projects threatened bodies of water but even then, their voices were essentially silenced by federal oversight implemented by the Trump-era EPA. Regarding the Trump administration’s changes to Section 401 of the Clean Water Act, the Supreme Court reinstated the rule in April for as long as the Ninth Circuit Court of Appeals hears the case. Tribes and advocacy groups like the Sierra Club filed a complaint against the rule in 2020; the rule has been rejected and temporarily reinstated since then.
EarthJustice, which represents the Suquamish Tribe, Pyramid Lake Paiute Tribe, Orutsararmiut Native Council, Columbia Riverkeeper, and Sierra Club in the 2020 lawsuit, praised the EPA’s decision to undo the Trump administration’s gutting of Section 401 of the Clean Air Act. “EPA’s proposal is a positive and welcome step towards correcting the Trump administration’s unlawful rollback of state and Tribal authority and the chaos imposed by the Supreme Court’s decision to reinstate the illegal rule that coopts the Clean Water Act to serve the interests of the fossil fuel industry,” senior attorney Moneen Nasmith said in a statement.
A public comment period on the proposed draft rule has opened for 60 days, with a virtual public hearing scheduled for July 18. In addition to the hearing, multiple meetings will be held to engage Tribes, states and territories, and stakeholders. The EPA expects to finalize the rule by spring 2023. This may not be the only major rule of consequence when it comes to allowing communities to fight back against projects from the oil and gas industry or other major polluters that would directly harm them: The Army Corps of Engineers recently wrapped up its public comment period on its re-review of Nationwide Permit 12, which would further streamline the permitting process for oil and gas pipelines, allowing the agency to effectively ignore the concerns of the communities such projects would impact so long as the perceived environmental impact is minimal.
Supporters of the permit and its potential narrowing believe that continuing to prioritize polluters will somehow do wonders for domestic energy, ignoring blatant environmental concerns. But many, many more people believe the Biden administration should instead stay true to its goals and allow for better oversight and accountability in the permitting process. In a public meeting last month, multiple community members called out how the permit itself was being misconstrued to rubber-stamp pipelines instead of allowing smaller projects like boat ramps to be constructed. Concerned citizens also highlighted the clear bias within the Army Corps for prioritizing pipeline projects instead of seeking legitimate community feedback.
Memphis educator and environmental justice activist Kimberly Owens Pearson criticized the Army Corps for its unwillingness to engage with communities. “I think when I hear that you can fast-track something that you’re trying to avoid the conversation. You’re trying not to be transparent. There’s no reason to fast-track anything when it directly impacts people in the community,” Pearson said. “We have history, we have families in Memphis we have multiple toxic facilities already and then to come in and put in more pipelines oil infrastructure and all that well we have enough these are the times where we need renewables… times are changing. There are plumes of smoke everywhere and we need the Corps of Engineers to do their job—not for the big bucks but for the people.”