The Environmental Protection Agency is out of control and running rough-shod over industries nationwide.
And while the attention of most states is rightly focused on the new air emissions standards, which will have a significant impact on coal mining in West Virginia, the next EPA warhead could decimate any development project, including construction, agriculture, housing, energy, and manufacturing, to name a few.
This threat is all about EPA’s growing appetite for expanding its regulatory authority under Section 404(c) of the Clean Water Act. About 60,000 Section 404 permits are sought every year in the U.S., representing hundreds of billions of dollars in project investment and impacting hundreds of thousands of jobs.
This section of the Clean Water Act also gives the EPA veto power over development projects that have gone through a very extensive permitting process as required by the National Environmental Policy Act, including a rigorous Environmental Impact Statement, conducted by the Army Corps of Engineers. Because this fair and science-based process has served the country so well for 43 years, EPA has exercised its veto only 13 times.
Most West Virginians are familiar with one of those vetoes, specifically Arch Coal’s Mingo Logan case, where the EPA revoked the company’s permit three years after it had been issued, resulting in lost jobs and taxes to West Virginia and millions in investment dollars to Arch.
Now, the EPA has taken its veto power to a whole new level, and that is what the states of West Virginia and Alaska not only have in common but should be working together to halt.
If EPA has its way, the agency will for the first time ever preemptively exercise its veto to kill the Pebble project, a significant copper and gold deposit in Southwest Alaska.
Not years after a permit has been approved, as in the Arch coal case, but before an application for a permit has even been filed. Such action is like denying a citizen the right to a jury and convicting them before they have a chance to plead their case.
If this occurs, it will set a regulatory precedent that gives EPA power of life and death over any project, anywhere, at any time. That will be especially true in mining states like West Virginia and Alaska.
There are a number of actions underway to try and stop EPA’s overreach, including:
A review by an independent Inspector General for the EPA, who is looking at information that has surfaced that shows EPA and environmental groups plotted behind the scenes for years to kill Pebble and then to use it as a precedent to stop projects in other states.
A lawsuit filed by the Pebble Partnership seeking an injunction to stop EPA from using this veto preemptively. Alaska has joined in the lawsuit. Alaska’s Attorney General recently said, “the most troubling aspect of the EPA seeking to veto [Pebble]...is that it sets precedent to take land anywhere in the United States and prematurely limit development of a valuable resource.”
West Virginia Rep. Nick Rahall and Sen. Joe Manchin, are co-sponsors of bipartisan legislation to stop this EPA power grab, which has support of members from other mining states, including Alaska, Kentucky, and Wyoming.
West Virginians like Mark Sadd, who said the “EPA’s cold-blooded rules will decimate West Virginia” are speaking out in papers like the Daily Mail.
Investors in development projects must be able to count on a fair process and the long-term validity of any permit they receive from the federal government. Otherwise, investments will not be made in this country by U.S. or foreign companies, which will likely take their dollars elsewhere. The losers will be the citizens of states like Alaska and West Virginia, and that is a message that EPA and the White House need to hear.
If EPA stands down from its threat of a pre-emptive veto of Pebble, no environmental harm will occur, and the agency will still retain its veto authority after Pebble completes the statutory process under the National Environmental Policy Act.
But to veto a project before a permit application has even been filed is denying the project, its developers, and the citizens of Alaska due process.
This looming precedent is bad for Alaska, bad for West Virginia, and bad for the United States.
Collier recently became CEO of the Pebble Partnership after a successful 40-year career as an environmental regulatory lawyer in Washington, DC.