U.S. Infrastructure Needs Updated Section 401 in Clean Water Act

Mark Green
Posted May 28, 2020

When New York Gov. Andrew Cuomo talks about building new railroad tunnels under the Hudson River, new subways and airports – as he did Wednesday after a White House meeting with President Trump – he hits the right infrastructure notes – urgency on critical public needs, forming partnerships, getting bureaucracies to move quicker and so on.

Unfortunately, the governor’s bullishness on infrastructure doesn’t extend to natural gas pipelines. Just the opposite. Cuomo and his administration seem to have blocked pipeline projects at every turn – underscoring the need for revisions to the federal Clean Water Act (CWA). I’ll explain.

Earlier this month New York’s Department of Environmental Conservation (DEC) nixed a key permit for the Northeast Supply Enhancement (NESE) pipeline, which would bring natural gas from Pennsylvania to New Jersey and then into New York City, where residents and businesses have weathered cold temperatures and high energy prices the past several winters – mostly because there’s insufficient natural gas pipeline capacity.

The New York DEC’s decision on NESE was primarily based on CWA’s Section 401. The DEC denied NESE a water quality certification (WQC), required by Section 401, and in doing so pretty clearly acted outside states’ jurisdiction under CWA. The Trump administration has proposed modernizing regulations implementing Section 401 would make them clearer and more transparent so that states don’t exceed their CWA jurisdiction.

A couple of examples of what we’re talking about can be seen in DEC’s rejection letter to Williams Company, the NESE’s builder:

• DEC asserted an authority to weigh in on species and habitat issues already addressed in the environmental review conducted by the Federal Energy Regulatory Commission (FERC) and under the National Environmental Policy Act.
• DEC asserted an authority to determine public need. The agency judged the pipeline to be incompatible with state climate change and greenhouse gas emissions policies and used this as a reason to deny the WQC, which is outside the states scope under CWA.

The point here is the state assertion of authority under CWA’s Section 401 where that jurisdiction doesn’t exist – which is why Section 401’s implementing regulations should be updated.

Writing in Forbes, Daniel Markind says ultimately, New Yorkers are the losers:

While environmentalists rejoiced, the decisions mean that New York City may be in for an even tougher time in the fall and winter should the coronavirus re-intensify during the cold weather … Without it (NESE), New York is left to import gas from overseas when, as no one even opposing the project has seriously disagreed, it will inevitably run out of domestic natural gas from existing pipeline supplies.

Here’s some of a statement issued by New Yorkers for Affordable Energy:

At a time when New Yorkers are struggling with the economic fallout from COVID-19 and in need of financial relief, we should be finding ways to reduce the cost of living, the cost of doing business, and the cost of construction and manufacturing. Unfortunately, with this decision, New York State once again demonstrated it puts politics ahead of the well-being of New Yorkers.

Finally, the issue recalls some points the Environmental Defense Fund’s Jonathan Peress told New York’s Public Service Commission last year, during a hearing on public utility Con Edison’s moratorium on new natural gas hookups because – again – there was insufficient natural gas coming into New York. Peress pointed out that:

• EDF data showed supply constraints due to pipeline supply constraints were causing “adverse environmental impacts.”
• Opposing or preventing new pipeline capacity expansion projects into New York “is not an effective climate policy …”
• There are pipeline projects that facilitate achieving “long-term and short-term environmental policy goals …”
• EDF data suggest certain projects “can, and should, foster greenhouse gas reductions …”

FERC has authority over the construction of interstate natural gas pipelines. As Markind writes, Congress set it up this way to remove projects crossing state lines from the realm of local politics. Modernizing Section 401’s implementing regulations, making them clearer and more transparent, is needed to establish proper state jurisdiction under CWS.

Doing this will help advance the larger national goal of safe and responsible construction of pipelines – to fully harness domestic energy for the good of American consumers.