Coal Tattoo

UPDATED: The legislation passed this evening on a vote of 239-184.

When last we left my good friend Rep. Nick J. Rahall, his staff was dodging questions about the growing body of science that shows serious environmental damage and public health impacts in his district from mountaintop removal coal mining.

Since then, Rahall has become the co-sponsor of legislation called the Clean Water Cooperative Federalism Act of 2011, H.R. 2018. The title says this is what the bill would do:

To amend the Federal Water Pollution Control Act to preserve the authority of each State to make determinations relating to the State’s water quality standards, and for other purposes.

House members are set to vote on the legislation today, and the email message I just got from the office of Rep. Shelley Moore Capito, R-W.Va., tells me that the U.S. Chamber of Commerce supports the bill, saying:

The Clean Water Act grants states the primary responsibility for protecting water quality. However, recent actions by the EPA upset and supplant this partnership with arbitrary federal power that is being exercised even over states with effective delegated regulatory programs. Individuals and firms that meet the requirements of, and obtain permits from, state regulators ought not to be left exposed to the enforcement whim and caprice of the federal government.

Make no mistake, this legislation is very, very unusual. The bipartisan Congressional Research Service observed in a report issued yesterday:

Beyond the recent specific examples, it noteworthy that the federal-state partnership for implementing environmental laws has not always been harmonious. There is ample history of friction between the desire of states to implement national programs flexibly according to their own priorities, versus EPA’s responsibility to oversee national programs and account for federal funds provided for states, as well as compliance of state programs with the goals and objectives of federal laws. While Congress has regularly registered concerns with regulatory initiatives of EPA and other federal agencies and sometimes considers legislative proposals to alter or de-fund an agency’s ability to implement a particular regulatory program, it is highly unusual for Congress to advance legislation that would broadly alter the federal-state partnership in order to address dissatisfaction with specific actions by EPA or another agency.

Rep. Rahall, talking with MetroNews the other day, was at least pretty honest about this legislation being less about cooperative federalism and more about protecting the coal industry:

“Under the current practices of the EPA the permits for surface mine throughout the Appalachian states have been bottled up for months,” said Rahall in a recent appearance on MetroNews Talkline. “That is not the proper role, in my opinion, of a government agency.”

“This worry, distrust, and bitterness has got to stop,” Rahall said. “I was hoping we could work this out with the EPA, but in recent months it has gotten worse.”

Rahall says the legislation which he expected to easily win approval in the US House of Representatives curtails the authority of the EPA to usurp the actions of state environmental regulators who are following the federal guidelines of the Clean Water Act.

“We gave them time to take care of it. I might have believed that at one time and it may very well have been true, but enough is enough,” Rahall said. “We have seen the EPA use memorandums of understanding or enhanced coordination procedures or whatever you want to call it to impose its own will on the states. It’s essentially drawn a line in the sand and daring the states to cross.”

So what would the bill do? Well, for one thing, it would greatly limit any ability of the EPA to make sure water quality standards adopted by the states were adequately protecting the public and the environment. As the Congressional Research Service said:

This amendment would effectively eliminate EPA’s oversight of state water quality standards in the covered situation. Under current law, EPA’s basis for acting is its determination that a state has failed to adopt standards that meet the act’s requirements. Under the amendment, that state would have to concur that it had failed to meet the law’s requirements before EPA could act. This is likely to occur only rarely, since if a state agrees that its standards do not comply with the law, it presumably would correct any flaws itself.

It would stop EPA from taking back the authority — granted to states by the agency — to issue water pollution discharge permits. As the CRS said:

The authority in current law to withdraw program approval provides a certain deterrent to a state implementing an NPDES program in a manner that fails to meet the law’s requirements. Historically, however, EPA has been reluctant to revoke delegation and has preferred to work with states to correct program deficiencies, rather than to take back a program that would then be EPA’s responsibility to administer. CRS is not aware of EPA ever having withdrawn NPDES program approval based on concerns over a state’s water quality standards or having proposed to do so.

And, the bill would keep EPA from being able to object to state-issued water pollution discharge permits it believes are not stringent enough. The CRS said:

This provision, if enacted, would greatly reduce EPA’s ability to carry out a key federal oversight responsibility under the CWA, that is, to assure consistency of state-issued permits with water quality standards.

David Goldston of the Natural Resources Defense Council had some interesting thoughts on this legislation on an NRDC blog:

On clean water, history has already shown what happens when states are left to their own resources. They often engage in a “race to the bottom,” granting concessions to businesses whatever the impact on health and water quality, especially if the consequences will be most felt downstream in other jurisdictions. This was life before the Clean Water Act was enacted in 1972 and few would see that as “the good old days.” Optimism is sometimes defined as the triumph of hope over experience. For this Congress, we need a word for the triumph of failure over experience.

States’ rights water policy doesn’t work in theory, and it hasn’t worked in fact. What the bill’s sponsors, Rep. John Mica (R-FL) and Nick Rahall (D-WV), are trying to do has nothing to do with federalism and certainly nothing to do with cooperation. It’s revenge for the federal government not giving carte blanche to mountaintop mining removal or agricultural runoff – two situations that should be textbook examples of why having a federal backstop for state water decisions is the only way to protect the public.