The U.S. Supreme Court has temporarily blocked a federal district court decision to halt a Trump administration rule limiting states’ ability to block major interstate energy projects.
The Trump-era rule prohibits states and tribes from denying certificates to projects for any reason other than the discharge of pollutants. Some states weighed other factors, including climate change, in deciding to block infrastructure projects such as oil and natural gas pipelines.
The rule was challenged by environmental groups, Native American tribes, and several states. Senior U.S. District Judge William Alsup in San Francisco stopped enforcement of the rule until the lawsuit against it is decided. The Supreme Court has now reversed that ruling.
State Certification Required
Projects that could affect federally regulated waters must receive water quality certificates from the affected states and tribes before federal agencies issue permits for them, under the 1972 Clean Water Act (CWA).
Although the Biden administration agreed Alsup lacked the authority to throw out the rule without first determining it was invalid, it urged the Supreme Court not to reinstate the rule because federal agencies have reverted to regulations that were in place for decades before the Trump rule changes.
Industry groups and eight states appealed Alsup’s order to the Supreme Court, which voted five to four for a temporary stay of the district court’s ruling, leaving the Trump-era CWA rule in place, on April 6.
‘Clear and Consistent Permitting’
President Donald Trump’s rule changes gave developers and industry the regulatory certainty they need to bid on and carry out projects, said Ryan Meyers, senior vice president and general counsel for the American Petroleum Institute (API), in a statement.
“API is pleased that the Supreme Court has decided to remand the Section 401 permitting rule until a new rule is adopted,” said Meyers. “CWA permits have been needlessly delayed or denied, stalling critical energy infrastructure projects. Having a clear and consistent permitting process in place ensures that needed infrastructure can be built to provide the affordable, reliable energy Americans rely on every day.”
‘Environmental Extremism’
Radical activists want to make development more difficult and lawsuits more likely, says Paul Driessen, a senior policy advisor for the Committee For A Constructive Tomorrow (CFACT), which co-publishes Environment & Climate News.
“These attacks on traditional energy sources underscore the arbitrary, analysis-free nature of extreme environmentalist policy,” said Driessen. “They simply assume that very few wind turbines and solar panels will be needed to supply America’s enormous energy needs, and that the raw materials required to make them will be mined and refined in ‘someone else’s backyard’ far away from them.”
Some states use the CWA’s federal permitting process under Section 404 and the requirement for state certification of projects under Section 401 to stop development, says Daren Bakst, a senior research fellow with The Heritage Foundation.
“The state abuses of Section 404 of the Clean Water Act are an example of environmental extremism and a desire to block whatever projects some extremists don’t like for whatever reasons they want, using Section 401 as a cover,” said Bakst. “To address this long term, Congress needs to codify key reforms into law, including making it perfectly clear that non-water excuses to block projects are prohibited.”
‘Blatant Lawfare’
Anti-fossil-fuel groups and their political enablers forum-shop for judges who favor their dubious legal arguments, says Driessen.
“Blatant lawfare against traditional energy sources continues unabated and unchecked, with no regard for the fact that oil, gas, and coal are still 80 percent of domestic and global energy consumption,” said Driessen. “Radical activists and their Democratic allies display little concern for the fact that their actions drive up energy prices and kill jobs, companies, industries, and communities that depend on fossil fuels for energy and raw materials,” said Driessen.
Green-energy advocates should be concerned the same legal strategy could be used to block infrastructure they favor, says Driessen.
“Their actions display ignorance of the fact that their lawfare will likely inspire and set precedents for hundreds of similar legal actions against every wind, solar, transmission line, and battery project they promote,” said Driessen.
“Energy Secretary Jennifer Granholm has said, ‘The decisions we make today will shape the energy landscape of tomorrow,’ and she’s right, but she is clueless about the harm being done today by the Biden administration’s energy decisions, which will likely shape our lives, livelihoods, health, and living standards for years to come,” said Driessen.
Kevin Stone (kevin.s.stone@gmail.com) writes from Arlington, Texas.
As a long time regulatory practitioner, I agree with Paul Driessen’s sentiments entirely. The rouge behavior of the environmental NGO’s in stifling the regulatory process has gone under the radar far too long. These activists need to be exposed and held accountable for the BAD FAITH they have routinely brought to the permitting arena.