Senate Republicans introduced legislation on Tuesday that would take regulatory power away from states in order to expedite the approval of energy infrastructure projects that are facing stiff resistance from the public.

The bill, dubbed the Water Quality Certification Improvement Act of 2018, is part of an effort by the Trump administration and its allies in Congress to reduce the ability of states to use their authority under section 401 of the Clean Water Act to prevent the construction of projects such as pipelines or coal export terminals.

“The water quality certification process is being abused by a few states in order to delay important projects,” Sen. John Barrasso (R-WY), chairman of the Senate Environment and Public Works Committee said Tuesday in a statement.

Along with Barrasso, the bill was introduced by Sens. Shelley Moore Capito (R-WV), Jim Inhofe (R-OK), and Steve Daines (R-MT). They described their proposed changes to the Clean Water Act as placing “procedural guardrails and requirements on states as they process requests for certification to prevent future abuses.”


Over the past year, a federal court ruled in favor of New York but allowed a case to move forward against Washington state. Both states had denied water quality permits for major energy infrastructure projects.

Industry advocates have complained that such decisions are giving states veto power over projects that they claim fall under the purview of the federal government. The industry has called on Congress to step in and make it more difficult for states to stand in the way of these energy infrastructure projects.

The bill would clarify that the scope of a section 401 review is limited to water quality impacts only. It also clarifies that states, when evaluating water quality, can only consider discharges that would result from the federally permitted or licensed activity itself, not from other sources. And the bill requires states to make final decisions on whether to grant or deny a request in writing based only on water quality reasons.

Environmental groups described the senators’ effort to weaken the role of states in reviewing energy infrastructure projects as “hypocritical.”


“It’s flatly hypocritical that senators from the party long known to espouse states’ rights want to strip away the little power states actually have to protect themselves from the inherent harms and dangers of explosive, polluting fossil fuel infrastructure,” Food & Water Watch spokesperson Seth Gladstone said Tuesday in a statement emailed to ThinkProgress.

“One can only surmise that these guys don’t care much for traditional Republican values at all,” Gladstone continued, “they only care about the big oil and gas corporations that fund their reelection campaigns.”

According to Barrasso, Washington state “hijacked” its authority in order to block the construction of terminals that would export Wyoming coal to overseas markets. “The state of New York has taken similar steps to slow the construction of natural gas pipelines,” the Wyoming Republican said. “This kind of obstruction is about politics, not water quality.”

Section 401 of the Clean Water Act requires that any entity applying for a federal permit or license that may result in a discharge of pollutants into waters must obtain a state water quality certification. No license or permit can be issued by a federal agency until certification required by section 401 has been granted.

David Turnbull, strategic communications director at Oil Change International, an environmental research and advocacy group, said it’s “ironic” to see members of Congress who are traditionally focused on so-called states’ rights attempting to strip state leaders of their ability to protect their constituents from fossil fuel projects.

“Taking a quick look at the millions in fossil fuel money being funneled to the sponsors of this legislation should tell you all you need to know: They are doing the bidding of the fossil fuel industry in order to force through dangerous projects that lock us in to fossil fuels that are burning up our climate,” Turnbull said Tuesday in a statement. “Governors across the country are right to stand up to these projects to protect their communities from not only the local water and other environmental impacts of fossil fuel projects, but also the impacts of our climate crisis writ large.”


In 2016, the New York State Department of Environmental Conservation denied water quality certification to Constitution Pipeline, blocking the natural gas pipeline from being built within the state.

And last September, regulators in Washington state dealt a potentially lethal blow to a coal export terminal proposal in the Pacific Northwest, denying the project a water quality permit needed to move forward.

If built, the terminal, proposed by Millennium Bulk Terminals, would have been the largest coal export facility in North America, with capacity for moving 44 million metric tons of coal annually.

An environmental impact study released by the Washington Department of Ecology, however, found that the project would have resulted in an additional 7.6 million metric tons of carbon dioxide equivalent over a 20-year period — roughly equivalent to adding eight million passenger vehicles to the road.

The legislation proposed on Tuesday would limit the power of states by requiring them to make final decisions on whether to grant or deny a request in writing based only on water quality reasons and requiring them to inform a project applicant within 90 days whether the states have all of the materials needed to process a certification request.

“These politicians are just upset that states are acting in the best interest of their residents instead of the polluting corporations funding their campaigns,” Kelly Martin, director of the Sierra Club’s Beyond Dirty Fuels Campaign, said Tuesday in a statement emailed to ThinkProgress. “The commonsense protections of the Clean Water Act keep our water clean and our communities safe from pollution.”