Wyoming Officials Try To Tweak Clean Water Act For Coal

Nov 22, 2019

Credit EPA

Water issues in the West have been around, basically, since the West was claimed and divvied up. And they haven't really let up since, which was on full display in the Environment and Public Works Committee this week.

That committee's chaired by Wyoming Senator John Barrasso who's working with the Trump administration to try to upend a key part of the Clean Water Act of 1972. Tucked inside the act is Section 401, which gives states the power to certify - or, more importantly, deny - a certificate for projects if they're seen as potentially damaging to the water quality of other states. Barrasso wants to overhaul that section.

"Congress created section 401 of the Clean Water Act to give states a seat at the table before federal permits are issued. States deserve that seat at the table. The majority of states carry out this role in a responsible way. Recently, a select group of states have weaponized section 401 to stop energy projects from moving forward," Barrasso says.

Barrasso and officials in Trump's EPA are up in arms over Washington State's rejection of the plan to build the close to $700 million Millennium Bulk Terminal, which was proposed as a coal hub so Powder River Basin coal could more easily be sold to countries in Asia. That's why Barrasso asked Governor Mark Gordon to trek to the swamp this week.

"How is Washington State's abuse of the certification process, hurting Wyoming workers and harming the economy of our home state?" Barrasso asked.

"Thank you, Mr. Chairman. Washington's blockade has brought a certain amount of uncertainty to coal markets going forward, unjustifiably," Gordon replied.

Barrasso and Gordon accuse Washington State of trying to use Section 401 to try to reduce carbon pollution from coal, and not for water quality control.

"Rules and regulations should be squarely centered on purpose, in this case: water quality. They should not become an all of the above artifice to thwart unwelcome projects with prejudice," Gordon says.

At the end of the summer the EPA dropped a new rule that seeks to speed up the certification process while also narrowing the scope of the current section 401 process, which Gordon accuses other states of abusing.

"In Wyoming our section 401 certifications are based on water quality and completed within a reasonable time - that is usually around 60 days on average. Elsewhere, some states apparently have found in section 401 of the Clean Water Act novel ways to block projects rather than using it correctly, as a regulatory framework to address attendant water quality concerns," Gordon says.

Barrasso's sponsoring a bill that would limit the current power enjoyed by individual state's to block interstate projects that local officials deem hazardous. But in the hearing, Democratic Illinois Senator Tammy Duckworth called out Barrasso and the administration for being hypocritical when it comes to state's rights.

"It is disappointing, but not surprising, that the Trump administration only cares about states' rights when it is to look the other way, allowing corporate polluters to destroy streams and pave over wetlands," Duckworth says.

It's not just states. Many tribes have also opposed the push by Republicans to upend the Clean Water Act, which Duckworth bemoans.

"I recognize the developers who fail to meet the requirements identified by states and tribes may be frustrated by denials in earning federal approval for a given project. However, silencing the voices and inputs of those Americans most directly impacted is the wrong approach," Duckworth says.

Barrasso says Washington State's claim that the massive coal export terminal would be bad for its environment is "just plain wrong."

"The Millennium Bulk Terminal project would reduce emissions globally. Washington State is not preventing Japan and others from burning coal. Countries like Japan and others are going to get their coal from somewhere. Wyoming and our low sulfur coal is cleaner than coal from other parts of the world," Barrasso says.

Still, Washington State officials say that argument is merely a red herring. The state's Senior Assistant Attorney General Laura Watson told Barrasso that their decision has had nothing to do with carbon pollution.

"I would like to set the record straight: Washington's 401 denial was based on water quality grounds. Climate change and greenhouse gas considerations were in no way a factor in the state's denial," Watson says.

Over the decades, Washington State has signed off on thousands of approvals under section 401, while state officials like Watson say only around 30 of those applications have ever been denied. That's why she says this attempted federal power grab on behalf of Fossil Fuel interests is dangerous.

"EPA has proposed a rule that would seize control of 401 decisions from states and place those decisions in the hands of federal agencies," Watson says.

Still, Barrasso takes this fight personally, because he says it's hurting the industries he represents.

"The State of Washington has basically weaponize the Clean Water Act to prevent us from being able to ship coal to markets overseas who want to buy what Wyoming has to sell," Barrasso says.

Barrasso's proposal is currently on hold because Democrats have the ability to filibuster it. But there's a lawsuit challenging Washington State's decision to block the coal terminal that's still winding its way through the federal courts, which is being closely watched by Wyoming Republicans like Barrasso and Governor Gordon, along with environmentalists and the tribal communities who claim upending the Clean Water Act will hit them hardest.