Fair play: Should all government decisions be final?

April 26, 2013 by Ken Ward Jr.

In this aerial photo, part of the work already done at the site of the Spruce Mine can be seen alongside Pigeonroost Hollow, at right. Photo by Vivian Stockman, flyover courtesy of Southwings.

It’s certainly not surprising that the Daily Mail and Hoppy Kercheval both pounced earlier this week on the D.C. Circuit Court of Appeals decision that the U.S. Environmental Protection Agency in fact does have legal authority to veto a mountaintop removal permit issued by the federal Army Corps of Engineers.

Both of these coal industry defenders managed to do so without mentioning that the decision came from a panel of three judges appointed by some of their favorite presidents. Never much for nuance, the Daily Mail’s editorial writers declared that the ruling “will end coal mining.” Hoppy went off onto some thing about M.C. Escher which had the feel of a college freshman reaching for a smart analogy.

And it was certainly not surprising that West Virginia political leaders reacted the way they did to this ruling.  We ran through some of the problems with their narrative the other day. But it’s worth mentioning this all again, now that Sens. Jay Rockefeller and Joe Manchin, both D-W.Va., have reintroduced something they have decided to again call the “EPA Fair Play Act.” The bill’s official purpose is this:

To amend the Federal Water Pollution Control Act to clarify and confirm the authority of the Environmental Protection Agency to deny or restrict the use of defined areas as disposal sites for the discharge of dredged or fill material.

To clarify and confirm EPA’s authority. Not so much.  What the bill actually does is strip EPA of authority that three Republican judges have said is clearly in the current Clean Water Act passed by Congress 40 years ago. The text of the original version of the legislation is online here. This is how it changes the key section of the Clean Water Act, Section 404(c):

The Administrator   Until such time as a permit under this section has been issued by the Secretary, the Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. Before making such determination, the Administrator shall consult with the Secretary. The Administrator shall set forth in writing and make public his findings and his reasons for making any determination under this subsection.

But what I really wanted to mention here is the rhetoric that Sens. Manchin and — most unfortunately, Sen. Rockefeller (who had otherwise recently been trying to take a more reasoned and balanced approach to coal industry issues) — are throwing in their press releases on this legislation.

Here’s Sen. Manchin, for example:

It is fundamentally wrong for any bureaucratic agency to regulate what has not been legislated. Giving such absolute power to an agency will have a chilling effect on investment and job creation far beyond our great state of West Virginia.

Regulate what has not been legislated? What is he talking about? EPA’s authority to veto the Spruce Mine has, in fact, been legislated, and a very conservative federal appeals court panel has upheld it. Is somebody in Sen. Manchin’s press office just copy-and-pasting quotes from other EPA press releases, or does the senator not understand the status of this matter?

There’s more, and this is the part I really wanted to talk about:

As we continue to face a recovering economy, American businesses must have certainty in the marketplace. It is simply common sense to allow companies that already have been granted permits to finish the work they have started.

In their joint press release, Sen. Rockefeller  went even further down that road:

It’s only fair that when the federal government makes a decision about a permit, that decision doesn’t change. Our workers and businesses need to have that certainty to be able to do their jobs.

Let’s think about the reasoning here: When the government makes a decision … that decision never changes? Businesses need to have certainty?

Two things come to mind about this argument.

First, what about some certainty for the people who live near mountaintop removal operations? Do they need to have certainty about the quality of their water supplies, about having clean air, or not having their lives disrupted by blasting, coal truck traffic and dust storms? Should they have certainty that they won’t have to face increased risk of illnesses like cancer? That their children won’t face increased risks of birth defects? Are these things even worth our elected officials talking about?

Second, and perhaps more fundamentally, should all government decisions about permits or other authorizations for business (or personal, for that matter) activity be final?

Well, it wasn’t so long ago that then-Gov. Manchin was questioning why the state and federal inspectors didn’t shut down a certain coal mine that blew up and killed 29 of his state’s coal miners. This is what he said during a House committee field hearing in Beckley:

There are questions we need answered. Why did serious safety violations repeatedly occur at Upper Big Branch? Were the miners concerned about their safety? Were miners threatened or intimidated from speaking out? If state or federal regulators knew that the mine was unsafe, why was it allowed to continue to operate?

There’s been much discussion about administrative and judicial procedures that can allow a mine to remain open in the face of significant safety violations that would otherwise warrant a closure order. We need to ask ourselves, ‘‘Is bureaucracy getting in the way of safety?’’

Of course, there are many circumstances under which a number of laws can prompt mining permits to be revoked. The Clean Water Act allows Section 402 discharge permits to be revoked. The Surface Mining Control and Reclamation Act allows strip-mining permits to be revoked. Permits issued under both laws must periodically be renewed, and those renewals can be denied under a variety of circumstances.

This is the way any number of regulatory systems work in our country and our economy.

If the FDA discovers that a previously-approved medicine is actually making people sick, should they be able to order it off the shelves? If we find out that some wonder chemical that’s been on the market for years actually causes cancer, should EPA be able to stop its production? What about something more basic: Should we be able to take away the license of a repeat drunk driver?

Followed down its logical path, the argument Sens. Rockefeller and Manchin make says that none of those sorts of government actions should be allowed. Surely they don’t mean what they’re saying — they must certainly think that part of the purpose of government, of having regulatory agencies in the first place is to protect the public, something that necessarily involves evolution and changing standards as science learns more about any variety of activities and substances.

What’s going on here is that Sens. Manchin and Rockefeller — along with the coal industry and a lot of other coalfield political leaders — don’t like the fact that EPA has been for the last four years trying to apply some of what science is teaching us about mountaintop removal coal-mining to the way that activity is regulated. In some instances, EPA’s efforts have brought compromised mining permits that allowed coal production to move forward with fewer impacts (see here, here and here). At least one major coal producer has said it’s going to abandon mountaintop removal, and continue mining coal in Appalachia through less-damaging methods. In the case of the Spruce Mine, the company made some concessions previously, but didn’t want to move forward with alternatives presented in an EPA-commissioned engineering study.

The issues confronting mountaintop removal, the impacts of that practice on the environment and the people, and finding ways forward for coalfield communities require honest, committed, and thoughtful discussion.  Overheated rhetoric that does little but fuel both sides — especially inflaming the anti-government sentiment the coal industry has so strongly encouraged — doesn’t do anybody any good at all.

Sen. Manchin can talk all he wants about trying to find a “balance” between jobs and the environment. Sen. Rockefeller can throw a few words about how EPA “serves a very important purpose to protect our health and water quality” into his press statements. But for either of them to truly help the state move forward on coal-mining issues, they’ve got to both publicly admit that the science shows there are problems with mountaintop removal, and challenge everyone to find ways to address those problems.

Instead, they’re promoting the notion that none of us — least of all government — can learn and grow from our problems or mistakes, that we’ve got to just keep doing the same thing, because that’s the way we’ve always done it.  Surely they must both know better than that.

10 Responses to “Fair play: Should all government decisions be final?”

  1. pramatic realist says:

    It makes perfect sense to me. Whenever you build anything, say a hot dog stand, you have to get approval from a number of entities, e.g. building inspector, health department, traffic department, zoning commission, fire marshal, etc.. Each one has responsibility for a different aspect of the situation. If one doesn’t pass the project, you can’t build it.

    The Corps of Engineers is in charge of streams and waterways in terms of navigability and safety of engineering projects, such as dredging, dam building, bridges and so on, not water quality or environmental impact. The EPA rightly should have to certify the project in terms of water pollution and impact on wildlife. You should require permission form BOTH to build a mine. How hard is that to understand?

  2. jf rote says:

    Ken…Great reporting.

  3. hebintn says:

    “Let’s think about the reasoning here: When the government makes a decision … that decision never changes? Businesses need to have certainty?”… “The Clean Water Act allows Section 402 discharge permits to be revoked.” Ken, you’ve hit the nail on the head. Somebody said, there are no absolutes. The good senators are politicians, first. On the one hand they will say what they think the voters want to hear, on the other hand they must LEAD and show the voter the right path. These days we have a lot of talk and very little of the leading.

  4. Armored Face Conveyor says:

    Does anyone here really disagree with the notion that some amount of certainty is needed? The problem in this case is that the EPA waited years after permit approval to object. It is unreasonable to expect companies to spend $100’s of millions of dollars on equipment and infrastructure after they obtain their permits in a good faith manner and then jerk the rug out from under them without offering any compensation. I guarantee that if you legally build your house and then a government agency comes and says you have to tear it down and we’re not going to pay you for it you would be a little upset as well.
    AFC

  5. Ken Ward Jr. says:

    AFC,

    Thanks for your comment.

    It’s not true to say EPA “waited years after the permit approval to OBJECT.” They objected all along. They did use their veto power four years after the permit was issued.

    But there was a change in administration (elections matter) and EPA cited a variety of new science as well as water quality data from the mining that had been performed at the site since 2007.

    And in fact, all of the sorts of permits I mentioned in this post involve “some amount of certainty” — it’s just not absolute, which is what the legislation contemplates. In this instance, the operator has “certainty” that there permit will stand unless EPA determines after it’s issue that there will be unacceptable adverse impacts to the natural resources listed in the statute.

    So no, it’s not that no amount of certainty is needed — but there’s no absolute certainty for anything that any of us do.

    Ken.

  6. Armored Face Conveyor says:

    Ken,
    My recommendation would be that in a case where they choose to exercise veto authority after work has begun that they compensate the affected party in a manner similar to eminent domain. Personally the fact that as you cite there was an administration change that precipitated this action (tacit agreement about a war on coal? – thanks for your concession :) )is the most disturbing part of this. Permits should not be revoked on political ground. The law should not change every 4 years.
    Thanks for the opportunity to gripe.

  7. Soyedina says:

    AFC, no one has demonstrated that this permit was “revoked on political grounds” and in order to so they’d have to discredit that stack of scientific evidence that Ken mentioned.

    Your idea of compensation might be undermined by the company refusal to consider the several engineering alternatives that would have mitigated many of the impacts while maintaining a large fraction of production. It seems that the company chose this route, challenging EPA, on less than solid legal advice about the statutory authority of the Administrator.

    And, to us anyway, raising objections about “the law shouldn’t change” (it hasn’t, anyway) is a concession about what the science says. A question, if you were in agreement that the specified fills which were removed from the permit by the “veto” were to have unacceptable impacts on fish and wildlife resources, etc…. what would you do?

    I am assuming that you don’t agree with this and asking you to consider this from that perspective, but that may be an unwarranted assumption. Either way, if the science says “unacceptable impacts will ensue” then why is your solution “full steam ahead”?

  8. J Schaeffer says:

    Ken,

    I think your argument about certainty in the marketplace makes an inapt comparison. Shutting down a mine for safety reasons is different than changing specifications so as to functionally invalidate a duly-issued permit. Certainty is not an issue in the former example because the operator is VIOLATING the law. However, certainty is an issue in the latter example because the operator has been told that it is in compliance with the law (i.e., through issuance of the permit), but is then later told that it cannot operate because the permit has summarily withdrawn. In sum, the operator can control its compliance in the former example (and achieve certainty), whereas it cannot in the latter example.

    Finally, your point regarding certainty for those living in the coalfields is fair. However, the issues you address are generally outside the purview of the FWPCA, and certainly outside EPA’s action in this specific case.

    Great blog, Ken – I always enjoy reading.

  9. mayflyguy says:

    Well said Soyedina. The company failed to mitigate the damages by refusing to budge with the EPA. EPA put out a proposed determination about the permit as another chance before vetoing the permit.

  10. Steve says:

    Wow whole thing turned on the definition of whenever….hard to believe those judges went that way….

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