EPA Rule Reversal Renews Chance to Block Maryland Pipeline Project

WASHINGTON -- The Environmental Protection Agency this month gave Washington-area environmentalists a new opportunity to block a pipeline that would run under the Potomac River and Western Maryland Rail Trail.

Environmentalists argued in a federal court case the pipeline could pollute drinking water drawn from the Potomac River all the way to Washington, D.C.

They lost efforts to block the Eastern Panhandle Pipeline project when TC Energy invoked federal rights of eminent domain to seize the 3.5 miles through Maryland it needed to build the pipeline. The pipeline is scheduled to run between Pennsylvania and West Virginia.

The project won approval from the Federal Energy Regulatory Commission in 2018 but the Maryland Board of Public Works denied TC Energy’s claim for an easement in early 2019. TC Energy sued.

The case was pending before the U.S. Court of Appeals for the Fourth Circuit when the Supreme Court ruled last summer that pipeline projects with federal approval can seize state-owned land to build natural gas pipelines. The case was PennEast Pipeline Co. v. New Jersey.

As a result of the ruling, TC Energy subsidiary Columbia Gas Transmission, LLC plans to begin construction in Maryland next year.

The plan could be halted again by attorneys for environmentalists after the EPA said this month it wants to return to states the authority to cancel pipeline, coal and other infrastructure projects that risk polluting waterways.

The Trump administration removed the state authority under what environmentalists said was an incorrect interpretation of the Clean Water Act.

The EPA’s proposed change is now in a 60-day public comment period before it can take effect.

“For 50 years, the Clean Water Act has protected water resources that are essential to thriving communities, vibrant ecosystems, and sustainable economic growth,” EPA Administrator Michael Regan said in a statement. “EPA’s proposed rule builds on this foundation.”

Congress intended the Clean Water Act in 1972 as the primary federal law governing pollution of rivers, streams and lakes. In addition to setting limits on pollutants, it also funded cleanup projects, such as for wastewater treatment and wetland restoration.

Section 401 of the Clean Water Act authorizes states to certify that discharges from economic development projects will not violate the states' water quality standards. The states can block permits and licenses to developers if their projects create excessive pollution.

The Trump administration overrode the Section 401 state authority by invoking an interpretation that gives the federal government the ultimate jurisdiction over “waters of the United States.” Trump argued the Clean Water Act applies solely to navigable waters that affect interstate commerce rather than all waterways. Now the Biden administration wants to override the Trump administration rule, potentially meaning Maryland environmentalists could still win.

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