Future of “Significant Nexus” Test Remains Unclear”

Once consideration of Sen. Joe Manchin’s (D-W.Va.) environmental permitting reform bill was removed from the government funding bill, it easily passed the U.S. Senate and is expected to pass in the House as well.

AGC has the latest on Senator Joe Manchin’s (D-W.Va.) legislation for his long-awaited permitting reform for energy infrastructure, as the clock ticks towards another government shutdown.

On September 6, 2022, AGC submitted a letter raising concern about the U.S. Environmental Protection Agency’s (EPA) intent to prohibit and restrict certain areas from disposal sites for the Pebble Mine under the Clean Water Act (CWA) section 404(c)---commonly referred to as EPA’s veto authority. The permit in question is currently undergoing an administrative appeal following the U.S. Army Corps of Engineers’ denial. EPA’s preemptive veto of the permit would set a harmful precedent for future projects working through the permitting and/or appeals process and have a chilling effect on infrastructure development.

On September 6, 2022, the U.S. Environmental Protection Agency (EPA) proposed the designation of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund as it is more commonly known). This action, if finalized as proposed, would trigger reporting requirements and ultimately the cleanup of contaminated sites. AGC is concerned about the designation as a contractor may have unknowingly interacted with the chemicals on jobsites that had not previously been considered contaminated—and CERCLA does not include an “innocent contractor” provision. AGC requested a 60-day extension on the comment period, which currently will close on November 7, 2022.

The Senate voted in line with AGC to overturn the Biden administration’s onerous NEPA rule to restore certainty for the construction industry and the environmental permitting process.

On August 8, AGC submitted comments in response to the U.S. Environmental Protection Agency’s proposed revision to the rule implementing the Clean Water Act (CWA) section 401 certification process, which provides for state review of federal CWA licenses or permits. The proposal rule if finalized would replace the 2020 rule that is currently in effect and would expand the scope of state and tribal reviews.

Seeking to find ways to help America build, key congressional leaders bring in AGC to talk about its Climate Change Task Force report, the challenges of the federal environmental permitting process and more.

On June 30, the U.S. Supreme Court decided a climate change related case that invoked the “major questions doctrine” to determine that the U.S. Environmental Protection Agency (EPA) had overstepped its authority under the Clean Air Act Section 111 to force an energy generational shift away from coal (West Virginia v. EPA). In the aftermath of this ruling, policy experts have been discussing whether this prohibits EPA from taking regulatory action to address climate change and whether the major questions doctrine will be called into play more frequently. Another recent example of the Court applying the doctrine is when it halted enforcement of the COVID-19 vaccination and testing emergency temporary standard.

Follow-up on AGC Member Survey on Sustainability Practices