President Donald Trump's initiatives to expedite energy and infrastructure projects may be affected by the Environmental Protection Agency's (EPA) veto authority, which allows the agency to block projects even after permits have been granted. This authority is derived from Section 404(c) of the Clean Water Act, permitting the EPA to restrict disposal sites if it determines that such actions could result in "unacceptable adverse effects." The law does not specify a time limit on this authority, enabling both preemptive and retroactive vetoes.
The EPA has previously exercised this authority, notably in 2011 when it blocked disposal sites for Mingo Logan Coal Co.’s Spruce No. 1 mine in West Virginia, four years post-permit issuance by the Army Corps of Engineers. Myron Ebell, a senior advisor to the Fix the EPA Veto Coalition, indicated that the EPA's broad veto power could jeopardize projects already in progress under future administrations.
Ebell stated, "The environmental movement and the climate movement groups are focused on anything related to fossil fuels... any project that is likely to become controversial... would then seem to me to be, have the threat of a veto, and that would... drive away investors and companies from all these projects."
The coalition, which includes several state energy business groups, is advocating for Congressional amendments to the law and is urging the Trump administration to implement an EPA rule that would restrict the agency's veto authority. Ebell noted that while such a rule would not eliminate the problem, it would slow down the process of reversing it.
Congress is also considering more permanent measures. In December, the House passed the PERMIT Act, which would limit the EPA's use of its Section 404(c) veto power to instances occurring only after a complete permit application is submitted and before the permit is issued. However, this legislation has stalled in the Senate Environment and Public Works Committee.
Daren Bakst, director of the Competitive Enterprise Institute's Center for Energy and Environment, emphasized the need for Congressional action while also exploring what the EPA can achieve under current law. Bakst suggested that an executive order from Trump could encourage the EPA to seek a long-term administrative solution while signaling to lawmakers the importance of addressing the Section 404(c) provision in broader permitting legislation.
Bakst also highlighted the legal uncertainty surrounding the EPA's ability to categorically prohibit all retroactive vetoes through regulation but noted that the agency could impose constraints, such as requiring consideration of costs imposed on permit holders. Jason Hayes, a senior research fellow at The Heritage Foundation, argued that while the EPA should maintain some authority to halt projects with significant environmental risks, its current authority is excessively broad.
In a letter from June, the U.S. Chamber of Commerce urged the EPA and other agencies to pursue a rule that would prevent the EPA from vetoing a Section 404 permit after it has been issued, stating that the ability to reverse or block permitted projects undermines confidence in the permitting system and deters investment.
Despite Mingo Logan being the only instance of a retroactive veto, Bakst cautioned that the authority still poses a potential threat to future projects, asserting, "If you can't even rely on a permit that you've already gotten, then... we've got a serious problem." Fox News Digital has sought comments from the White House and the EPA.