The Clean Water Act, Constitution Pipeline and the Constitution — A Case Study for Real Permitting Reform

On Friday, President Trump vowed to revive the Constitution Pipeline, but no official announcement has been made and litigation and state Clean Water Act (CWA) authority remain significant obstacles to infrastructure development. Blocked projects that would serve New England’s need for affordable, reliable and cleaner energy are part of the justification for Trump’s declared energy emergency, but just declaring an emergency is not enough; reform is needed.

Several structurally uncomplicated reform options exist, each with different political challenges tied to constitutional separation of powers issues. Trump’s push to revive the Constitution pipeline may underscore the desire for reform, but whether new solutions and a Constitution revival are actually on the horizon remains to be seen.

Permitting Reform Options for Clean Water Act Section 401

Under CWA Section 401, states have the authority to approve or deny Water Quality Certifications (WQCs) for federally permitted projects, making it a key tool for blocking infrastructure development. As discussed in Can Trump’s Executive Order Declaring an Energy Emergency Break the Pipeline Logjam in the Northeast?, this authority has been used in states like New York to halt projects based on factors beyond direct water quality impacts, including climate policy and broader environmental concerns.

The key mandate in the statute is that: “no license or permit shall be granted if certification has been denied by the State” (CWA § 401(a)(1)), making state denials effectively fatal for projects.

Congress has considered multiple CWA Section 401 reforms, though none have been enacted. These proposals aim to eliminate indefinite delays and reduce vague or politically motivated rejections, falling into three broad categories:

Categorically, these proposals focus on:

1. narrowing review scope,
2. imposing strict deadlines, and
3. shifting approval authority to federal agencies.

Bills such as the Water Quality Certification Improvement Act (introduced in 2019, 2021, and 2023) seek to restrict certification reviews to water quality impacts from direct discharges, rather than broader concerns like climate change. The bill aligns with the CWA’s original intent, which requires states to certify only that a project’s discharge will comply with specific federal water quality standards under Sections 301, 302, 303, 306, and 307 (CWA § 401(a)(1)). This would prevent states from expanding their review criteria to block projects based on unrelated environmental or policy considerations.

States have also exploited Section 401’s one-year limit through “withdraw and resubmit” tactics, extending review indefinitely. The statute states:

“If the State…fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year)…the certification requirements of this subsection shall be waived.” (CWA § 401(a)(1))."

To curb these delays some proposed legislation has included stricter enforcement of the one-year deadline and eliminating procedural loopholes that allow indefinite extensions. This is less of a problem at FERC after the court in Hoopa Valley Tribe v. FERC rejected the commonly used workaround of the one-year statutory limit on state action by allowing multiple cycles of withdrawal-and-resubmittal of applications.

More aggressive proposals—such as the Promoting Interagency Coordination for Review of Natural Gas Pipelines Act (H.R. 1115)—would transfer Section 401 review authority to FERC for gas pipelines, removing states from the process entirely. We also discussed efforts to redefine “Waters of the United States” (WOTUS) in the aforementioned article, but in short, a narrower definition could reduce the number of projects requiring WQCs, limiting state veto power by default.

Opposition for proposals such as these has focused on concerns with cooperative federalism, the GOP’s traditional support for states’ rights, and opposition from states that want to retain control over their water resources.

The Constitution Pipeline: Measuring the Cost of Delay

The Constitution Pipeline exemplifies how Section 401 delays can derail critical infrastructure:

• New York denied the project's WQC.
• FERC later ruled New York took too long, waiving its authority.
• Williams received a construction deadline extension until Dec. 2, 2020.
• Williams canceled the project, determining "further financial support of the Project’s development was not the best use of either our financial or human resources."

To quantify the impact of these delays, we examine how much time was lost due to WQC back-and-forth and how long the project should have taken under a streamlined process:

Comparing Constitution’s actual timeline to other projects that did not face the same degree of scrutiny underscores the urgency of reform. The below chart shows Constitution's timeline on the left, and the hypothetical chart on the right assumes receipt of a WCQ within one year, less resulting litigation, and adds a hypothetical construction period for a pipeline of its size.

Reform or Continued Stagnation?

Congressional failure to meaningfully address Section 401 has already deterred companies from proposing major infrastructure in states known for opposition. Without meaningful permitting reform, this chilling effect is likely to continue.

Whether Trump’s comments about the revival of Constitution reflect a renewed interest by Williams to pursue the project is uncertain. But legal challenges would likely resurface, which highlights the other major permitting obstacle: litigation.

While CWA reform is essential, legal challenges have crippled major infrastructure projects even after federal approval. In a subsequent article, we will explore the litigation bottleneck, why it has become the linchpin of infrastructure delays, and what solutions—if any—could break the legal gridlock.

If you would like to discuss how permitting reform efforts could reshape infrastructure development and investment decisions, please contact us.