Trump’s Executive Order Strips States’ Authority to Protect Clean Water

Executive Order is a clear move to benefit major oil and gas companies and expedite controversial infrastructure against the wishes of states.

President Trump released an Executive Order last week that seeks to restrict every state’s authority under the Clean Water Act. This authority allows state regulators to assess whether a major project, like a pipeline or dam, would have a negative impact on the state’s waterways – or more specifically, its water quality standards. This Order is even more alarming given a string of Executive Orders released from President Trump, such as the one giving himself the sole authority to approve major pipelines crossing international borders — which was previously the responsibility of the U.S. Department of the State.

Under the Clean Water Act (Sec. 401), a federal agency cannot issue a federal permit or license for a project that runs through state waters without first obtaining the state’s approval of the project. In 2017, Washington State used this authority to stop the construction of a coal terminal that would have been detrimental to the state’s waterways. Likewise, New York has used this authority to stop natural gas pipelines from coming through the state – citing concerns for the state’s streams and wetlands. Other states, like Maryland, have used this authority to “place conditions” – or certain water quality protections – on a major project.

State authority to review, place conditions on, or deny major projects coming through their borders is explicit under the Clean Water Act and has been strongly backed by the court system. This includes two major Supreme Court cases that resound the importance of state authority over these types of projects.

The Executive Order is a clear move to benefit major oil and gas companies, like Energy Transfer, and expedite controversial infrastructure against the wishes of states – like President Trump’s proposed border wall.

If implemented, the Executive Order seeks to make it harder for states to conduct an adequate review of major projects that cross the state’s waterways. In fact, five of the six policies established under the Executive Order have nothing to do with clean waterand everything to do with encouraging speedy actions, having a “single point of accountability” (i.e. FERC) and promoting energy companies. Only one of the six policies mentions “effective stewardship of America’s natural resources.”

The Executive Order prioritizes economic considerations over existing clean water protections. The whole purpose of the Clean Water Act was to improve the quality of the country’s waterways — which were heavily over-polluted at the time of its passage. It’s the primary vehicle that ensures the health and safety of our waterways, yet this Order is seeking to heavily restrict the only section that gives states robust authority to protect their own waterways. More specifically, it orders the U.S. Environmental Protection Agency (EPA) to issue a Guidance that will “clarify” any existing practices related to state authority under the Clean Water Act (i.e. the ability to conduct a thorough review of major projects) in light of the new policies under the Executive Order that shift the focus away from clean water.

Not only is this a major threat to the successes we’ve had under the Clean Water Act thus far, it’s a slap in the face to state sovereignty. States have the greatest access to information regarding their own waterways and the best ability to determine whether a major project – such as the relicensing of the Conowingo Dam – may have an impact on water quality. Despite this, the Executive Order would hinder every state’s ability to determine which projects can be allowed near or through its own waterways.

We will be working closely with our region’s states to assess and challenge the Guidance EPA’s plans to issue this summer. We anticipate that this Executive Order will be challenged in court as it is a clear attempt to strip states’ explicit authority granted under the Clean Water Act.