(Casper Star Tribune, August 17) – Sen. John Barrasso is not pleased with Washington state.
Although that is not an unusual position to hold in Wyoming — which is engaged in a legal dispute with the coastal state over coal — what the senator plans to do about his frustration could narrow a unique power that allows states to veto the federal government.
Barrasso has proposed changes to the Clean Water Act that he argues will close loopholes that are ripe for abuse. The provision up for revision, section 401, grants states the authority to certify projects that could affect their waterways. The flip side of that authority is states can refuse to greenlight a project or require conditions for certification — even if the federal government has approved it.
Barrasso’s bill has not come up for a vote. But environmental groups are riled up that a cornerstone environmental law could be snipped away by Congress and are criticizing Wyoming for not standing up for states’ rights. Others, like Barrasso, say this is about abuses of the law like those that happened in Washington state.
“The concern is what other states … might try for the politics of the moment,” Barrasso said in an interview Wednesday.
***
The Clean Water Act is not the only bedrock environmental law that Barrasso is examining right now. Early this summer the senator announced a draft bill to make significant changes to the Endangered Species Act.
Barrasso is chairman of the Senate Committee on Environment and Public Works and he’s utilizing that platform to advance Wyoming values.
“It’s a great opportunity to put Wyoming in a position to direct the issues that so impact our economy as well as protect our environment,” he said.
Wyoming’s governor has backed Barrasso’s effort to change the Endangered Species Act. Gov. Matt Mead has, to some extent, been the catalyst for ESA changes — putting the law on the docket for the Western Governors Association to consider and recently traveling to Washington to testify in favor of giving states greater authority managing threatened and potentially threatened species.
On the Clean Water Act, however, Mead has not rallied to the senator’s defense.
The governor said in an email that he does not hold a position for or against the bill, but believes that “it does not appear to erode Wyoming’s ability to protect its water.”
It’s the same opinion that Todd Parfitt, director of the Wyoming Department of Environmental Quality, took in a short note to Barrasso on Monday. Staff had reviewed the bill, as requested by Barrasso, and did not believe the changes infringed on state authority.
“It does recognize the states’ role in protecting water quality under the principles of cooperative federalism,” the director wrote.
***
The Western Governors Association has taken a slightly different view than Wyoming leaders. So have the Conference of Western Attorneys General, the Western Interstate Energy Board and the Western States Water Council, among others. The groups sent a joint letter Aug. 9 to congressional leaders warning against changes to section 401 of the Clean Water Act.
“A vital component of the CWA’s system of cooperative federalism is state authority to certify and condition federal permits of discharges into waters of the United States,” the letter states. “Curtailing or reducing state authority or the vital role of states in maintaining water quality within their boundaries would inflict serious harm to the division of state and federal authorities.”
Sam Kalen, co-director of the Center for Law and Energy Resources in the Rockies at the University of Wyoming, is an expert on the Clean Water Act. Kalen said Barrasso’s proposals appear to limit state authority and change the rare veto and conditioning power that states now hold.
“It’s a kind of significant program in a lot of respects,” he said of the state certification provision. “If you know the history of 401, this program has got a longer lineage than the Clean Water Act.”
***
Environmental groups have noted that support for Barrasso’s bill conflicts with the typical anti-federal regulation stance of conservative leaders.
Amy Mall, a senior advocate for the Natural Resource Defense Council, said Barrasso’s bill is a bald attempt to undermine environmental regulations.
“The senators pushing for this bill often argue ‘against’ federal regulation and in favor of states’ rights, when doing so would weaken environmental protections, yet now they argue for a bill to undermine state’s rights,” she wrote in a recent blog post for the organization.
It’s true that Barrasso has a record of going after environmental regulations that he argues overstep federal authority or harm Wyoming’s economic interests. The senator has praised the Trump administration for moves like removing a moratorium on new coal leases and the former head of the Environmental Protection Agency for taking steps to undo the Clean Power Plan. He has also supported undoing a methane waste rule from the Bureau of Land Management that forces oil and gas firms to use equipment and manpower to identify leaks, but that industry says is too onerous.
Barrasso said it’s difficult to amend foundational environmental laws without provoking a strong reaction.
“Anytime you talk about those pieces of legislation (Clean Water Act, Endangered Species Act, Clean Air Act), there are a group of extremists who don’t want them touched at all,” he said. “That’s not practical. That’s not reasonable.”
The senator also has his supporters.
CJ Stewart, board director of the National Tribal Energy Association, said the Clean Water Act has been used as a cudgel against the Crow tribe. The tribe would also benefit from potential exports to Asia. Montana, where the Crow Reservation lies, has had more success at exporting coal than Wyoming.
“Imagine having a trillion dollars in mineral wealth under your feet and yet your people are starving and destitute before you,” he said in a committee hearing on Barrasso’s bill Thursday. “Water quality certification should mean certification of water quality. Not what the Sierra Club wants.”
***
Wyoming is usually fast friends with groups or other states that oppose federal oversight, challenging Washington on issues like federal land management or environmental regulations.
But this time, the issue threatens something key to Wyoming’s outlook: coal exports.
Wyoming does not export coal to Asian markets, but has long wanted to. Millennium Bulk Terminals’ proposed coal port on Washington’s Columbia River could make that opportunity more feasible, some argue.
However, last year the Washington Department of Ecology denied a section 401 permit for the terminal, kicking off a period of reviews, appeals and lawsuits. On Wednesday the company, Millennium Bulk Terminals, lost a state board appeal that sought to overturn the state’s denial of the Clean Water Act certification. The coal port fight is still going on in the courts, with Wyoming weighing in on the case.
For Barrasso, Washington’s approach violates the Clean Water Act because it drifts beyond the limits of the law’s intent.
Kalen, of UW, said the certification actually has been used this way before. Though it can cause some uncertainty for lawyers, the scope of the 401 certification is broad. And that approach has been held up by the courts, since a 1994 case that also involved Washington state.
In the early 1980s, a utility tried to build a hydropower plant on the Dosewallips River, but the state’s Department of Ecology put a condition on its 401 certification. The dam had to control its flows in order to protect salmon. The case went to the U.S. Supreme Court, which sided with the state. The proposed dam was never built.
***
Barrasso’s proposal doesn’t appear to offer a remedy to Wyoming’s coal port problem. Unless the bill is rewritten, it’s not retroactive and the coal port terminal is already in the courts, Kalen said.
Still, other states’ politics can affect Wyoming, and it’s not absurd to see Clean Water Act changes as largely harmless to Wyoming: the controversial water projects don’t usually happen in the arid state.
These changes could be a buffer down the road, however, if states like California or Washington can adopt strict environmental positions that impact Wyoming, he said.
Kalen said the heart of the Clean Water Act debate is the federal-state relationship. The model that environmental groups approve has the federal government create a floor. States can be stricter in their environmental approach, but no less stringent, than federal standards, he said.
NGOs are likely to push back on Barrasso’s changes, because the 401 certification is a lever that states can pull to protect the environment. But, ultimately Congress has the right to change the law if lawmakers choose, he said.
Kalen believes there may be room for clarification on the certification aspect of the law. In practice, it is often difficult for lawyers to know where that boundary of state authority lies, he said.
“They are trying to fix some of the issues,” he said of the proposed changes. “But they are doing it with a very broad brush.”
