Law360 quoted Cynthia Taub and Monique Watson in an April 11 article titled "Trump Executive Orders Are No Panacea for Energy Projects." The article discusses how executive orders issued by President Trump take a shotgun approach to speeding up permits for oil and gas infrastructure projects and curbing states' ability to hold up approvals. Some describe Trump's pair of executive orders as a "grab bag" of policy directives, topped by ordering the US Environmental Protection Agency (EPA) to narrow guidance for states to issue water quality permits for pipelines under Section 401 of the Clean Water Act and giving the president the ultimate say-so on permits for projects that cross international borders.
Taub, who leads Steptoe's National Environmental Policy Act permitting and litigation practice, says that while the EPA's guidance isn't binding on states, courts might look to the guidance if state permit decisions are challenged. But the state's authority under Section 401 is fairly clear, and an executive order can't change that. "If we're not touching the statute, there's a limit on how much the EPA can do to limit states' authority under Section 401," Taub tells Law360. "It's not going to be a silver bullet."
Watson, a former FERC pipeline official, says the Federal Energy Regulatory Commission, which has refereed many Section 401 battles between gas pipeline developers and states, isn't inclined to second-guess a state's decision to deny a water quality permit. "The commission over the last year and a half has started to try to put some meat around some guideposts around when a waiver [of Section 401 authority] has happened," Watson says. "The commission is trying to be more clear, but I don't think the commission is saying states don't have that right."