The Supreme Court Halts Ruling Against Trump-Era Clean Water Rule For Now

On April 6, voted 5-4 to reinstate a Trump-era rule limiting states’ authority to certify infrastructure projects under Section 401 of the Clean Water Act. The decision is a victory for red states and energy companies that opposed blue states using their authority to block or severely restrict fossil fuel projects. The Biden administration is working to reconsider and revise the regulation.

 

Section 401 requires many large infrastructure projects to receive certification from the states that they will not affect water quality. When states used the law to block projects, the Trump administration issued a rule that limited the scope of states’ certification decisions. Critics argued that this violated a 1993 Supreme Court ruling that states can use Section 401 to impose conditions on general “activities,” not just direct discharges. The Trump rule also imposed strict deadlines on states for their decisions and gave EPA the ability to override a state’s denial of a permit if it believes the denial is not based on water quality issues.

 

In October, Judge William Alsup of the U.S. District Court for the Northern District of California remanded the rule and vacated it. That prompted a alliance of red states and energy industry groups to ask the Supreme Court to reinstate the Trump rule pending appeal. On Wednesday, the Supreme Court sided with the red states and industry groups, staying the ruling that vacated the Trump rule pending an appeal, but without explaining why. The order, however, allows EPA to continue working on a new version of the rule in the meantime.

 

Regan Defends President’s Budget Request for the Agency’s Infrastructure Implementation

On April 6, the Senate Environment and Public Works Committee held a hearing on President Joe Biden’s FY23 budget request for the Environmental Protection Agency (EPA),  released on March 28. The administration is requesting an $11.9 billion budget, a $2.34 billion increase over the agency’s FY22 funding level. EPA Administrator Michael Regan defended the President’s request, while several lawmakers pushed back on what equated to the largest amount of funding that the agency has requested.

 

Ranking Member of the Environment and Public Works Committee Shelley Moore Capito (R-WV) challenged Regan to justify why the agency needs funding to increase staffing by more than 1,900 full-time employees (FTE), especially since the agency received $60 billion in additional funding through the Bipartisan Infrastructure Law (BIL). Although BIL provided additional funding, including $50 billion for water infrastructure, it was for activities only and not for hiring. Regan explained that the agency needs additional staff to oversee programs that provide increased infrastructure spending, some of which can be spent more flexibly by states than the previous spending through state revolving funds.

 

Regan explained to Chairman Tom Carper (D-DE) the challenges EPA faces in meeting the requirements under the revised Toxic Substances Control Act (TSCA). The Trump administration did not request the resources it needs and has missed statutory deadlines for completing nine of 10 chemical risk evaluations, he said. He added that the TSCA program’s workload has now doubled, as it is required by law to evaluate 20 chemicals at a time instead of 10, but still has the same number of staff as it did for the first ten assessments. The increase in staff requested by the Commission includes 149 additional FTEs to handle TSCA tasks, which would bring the total number of staff in the office to 449.

 

Members from both sides of the aisle pressed Regan with numerous questions about greenhouse gas (GHG) regulations. Sen. Sheldon Whitehouse (D-RI) echoed criticism from many Republicans who accused the agency of not acting quickly enough with regulations and inquired about the status of a series of rules to reduce pollution from industrial and mobile sources. Regan assured lawmakers that the agency was preparing a new rule to limit carbon emissions from electric utilities and would address its climate change efforts once the Supreme Court handed down a decision in West Virginia v. Environmental Protection Agency. “We want to be sure that the rule that we design will fall within where the Supreme Court will land so that we’ll be within the realm of the law,” he said.

 

House Panel Examines Water Infrastructure Implementation

The House Energy and Commerce Subcommittee on Environment and Climate Change held a hearing on drinking water infrastructure on March 29. The hearing provided an overview of the problems the United States has been experiencing for years: lack of investment in water infrastructure leading to deteriorating systems and lead pipes, leaks, contaminated water, a backlog of maintenance, and the challenges of providing affordable drinking water. Members praised the investments made to modernize America’s water infrastructure through FY22 funding and the Bipartisan Infrastructure Law.

 

Despite overall bipartisan support for the needed investment,  Rep. Buddy Carter (R-GA)  questioned whether  EPA is using this bill as an excuse to overtake drinking water program management, spending flexibility, and utility operations that have traditionally been the responsibility of local and state governments. He inquired whether there would be long-term implications for project prioritization of the state revolving fund and questioned the lead service line replacement provisions.   For example, whether states have identified these lines and if there are safeguards in place to prevent millionaires from benefiting from the program.

 

Ranking Member David McKinley (R-WV) and witness Lori Mathieu of the Association of Drinking Water Administrators noted a shortage of engineers to work on infrastructure projects in the states. McKinley expressed concern that the lack of oversight of some of the water system infrastructure projects is leading to a “massive increase in water pipes, copper, and fire hydrants.” In particular, he pointed out that the use of eight-inch PVC pipes has increased 210 percent in the last three years, as well as a 157 percent increase in six-inch PVC pipes, according to the Parkersburg Utility Board. “I’m hoping that we can develop some kind of oversight with this, our chairmen and our committees, to be able to control this, because our communities are not going to be able to meet the infrastructure if we’re faced with this kind of supply cost facing us,” he said.

 

Jan Schakowsky (D-IL) shared concerns on how state funding might be affected by the timing of a state’s lead pipe needs assessment to determine how many lead pipes exist and how much it will cost to replace them, which she believes can lead to disproportionate funding. Erik Olson noted that it is unclear if the assessment will be done in time and may affect how the money is allocated for the next fiscal year. They are urging EPA to set aside and distribute the $15 billion based on need and have the needs assessment ASAP.

 

EPA Proposes Ban on  Chrysotile Asbestos

On April 5, EPA Administrator Michael Regan proposed a rule under the Toxic Substances Control Act (TSCA) to ban all ongoing uses of chrysotile asbestos, a key component in some chlorine manufacturing. The proposal would prohibit any use of chrysotile asbestos for manufacturing, import, processing, and distribution in commerce. This marks the agency’s first rulemaking based on a chemical risk evaluation under the 2016 TSCA reforms. If the proposal is adopted, chemical manufacturers would have two years to phase out asbestos from sheet gaskets and chlorine production. A shorter deadline of 180 days applies to the use of asbestos in automotive parts such as brake pads, brakes, and aftermarket brake linings.

 

“This historic proposed ban would protect the American people from exposure to chrysotile asbestos, a known carcinogen, and demonstrates significant progress in our work to implement the TSCA law and take bold, long-overdue actions to protect those most vulnerable among us,” Regan said. The rule comes in the wake of the EPA’s recent Risk Evaluation for Asbestos, Part 1, which found an unreasonable risk to human health for all ongoing uses of chrysotile asbestos.

 

However, representatives of the chemical industry, such as the American Chemistry Council (ACC), say the proposal is “unjustified” and based on an overestimation of workplace asbestos exposures and a threat to crucial supply chains for chlorine used in drinking water treatment. The group and its members have previously argued that its safety protocols are sufficient to protect workers from exposure and that chlorine production should be exempt from any TSCA ban. “If enacted, the proposed EPA’s rule would ban the manufacture of nearly one-third of the chlorine and sodium hydroxide chemicals and have significant adverse effects on the supply of the nation’s drinking water,” the statement said.