Speaking to the International Union of Operating Engineers in Crosby, Texas last week, President Donald Trump announced a pair of executive orders meant to expedite embattled pipeline projects.
“Nobody in the world can do what you folks do, and we’re going to make it easier for you,” Trump said Wednesday. He added later, “My action today will cut through destructive permitting delays and denials.”
One executive order directs the Environmental Protection Agency to reign state regulators in from denying Clean Water Act Section 401 water quality certifications. When considering a 401 certification, a state’s regulators determine whether a project’s impacts on water would fall within the state’s standards. Federal agencies cannot issue a federal permit or license without a state approving the 401 certification.
The other executive order gives the president authority to approve pipelines crossing international borders, which had been the responsibility of the U.S. Department of State.
The executive order on 401 certifications was made in response to several states denying those certifications to block projects. New York state regulators had denied a 401 certification to the Constitution Pipeline, which would ferry natural gas from Pennsylvania to the New York City area, leaving the project’s future uncertain.
In Minnesota, the Minnesota Pollution Control Agency is responsible for reviewing 401 certification, and it granted PolyMet’s contentious copper-nickel mine 401 certification late last year. Meanwhile, the agency is still reviewing the 401 certification application for Enbridge’s Line 3 oil pipeline, but a final certification decision is expected by late October.
The MPCA has only denied one 401 certification “in recent memory” - a “denial without prejudice” was made in 2012 for Northshore Mining - according to Darin Broton, a senior advisor and director of communications for the MPCA. But Broton said that “wasn’t a true denial” because the MPCA requested more information near the end of the one-year period, requiring a cancellation and resubmission to meet the Clean Water Act’s timeline.
“Northshore was able to resubmit its application with the additional information and was granted its 401 certification,” Broton said.
Unlike New York’s denial of 401 certification for a pipeline, the MPCA’s denial was not made to block the project.
“It is extremely rare for 401 certifications to be denied because most applicants choose to work with the MPCA to ensure strong water protection standards are met,” Broton said.
Aaron Klemz, director of public engagement at the Minnesota Center for Environmental Advocacy, figures the MPCA never denies a 401 certification because the agency usually makes it clear to the company if a project won’t meet its standards before the application process begins.
“I think the projects that have failed to get permits under the Clean Water Act have almost always been because the state’s given a pretty clear signal to the project proposal that it won’t comply, and they don’t bother going through the process of getting it rejected,” Klemz said.
The MPCA declined an interview specifically about the impact of Trump’s executive order on 401 certifications last week, in part because such little information had been given to the agency except the EPA’s news release announcing the order.
In that release, EPA Administrator Andrew Wheeler said the federal agency would strive toward consistency among state agencies reviewing 401 certifications.
“Many states implement Section 401 of the Clean Water Act faithfully; however, on occasion, inconsistent implementation and outdated guidance and regulations have caused delays in infrastructure projects with significant national benefits,” Wheeler said. “EPA will immediately engage with our state and tribal partners to identify ways we can modernize the 401 certification process and accelerate infrastructure projects that will improve the lives of Americans.”
Klemz said he reads the executive order as merely guidelines for state agencies and believes it will likely have minimal impact on a state’s decision.
“I think this is more of a symbolic gesture to say ‘We’re pro pipeline’ than it is an actual substantive change that would affect the projects that exist right now,” Klemz said. “I don’t see the state of New York saying, ‘Oh, we changed our mind now because we have different guidance.’”
Enbridge, which is awaiting its 401 certification from the MPCA and owns multiple pipelines crossing the U.S. and Canada border, is “evaluating the orders,” Enbridge spokesperson Juli Kellner said in an email to the News Tribune.
“We support the focus on enhancing the predictability of the permitting process and the critical importance of investing in energy infrastructure in the U.S. and Canada,” Kellner said.