There is much attention being given these days to size/scope of government. Oppressive and unpredictable regulation is judged by industry, local and state governments and the financial markets as a major impediment to solving our nation’s fiscal woes and jumpstarting a long-stalled economy.
A particular concern: the frequent side-stepping, by the White House and federal agencies, of the formal rulemaking processes set forth under federal statutes in favor of Executive Orders, Secretarial Orders, agency guidance, interim rules, draft policies, reinterpretation policies and legal “consent agreements,” etc.
The Environmental Protection Agency (EPA) is the poster child for this kind of regulatory adventurism. The agency is testing the outer boundaries of its authority to dictate the form and substance of huge swaths of the U.S. economy.
Nowhere has EPA been more aggressive than in the Clean Water Act (CWA) arena. Take, for example, the agency’s recently released “Bristol Bay Alaska Watershed Assessment.” This “scientific study” is rife with process, legal and technical problems:
• Less a scientific inquiry and more a witch hunt
The Bristol Bay Assessment is less a scientific inquiry and more a witch hunt against large-scale hard-rock mining. The State of Alaska put it succinctly: “Nothing we have seen dispels the State’s concerns that the watershed assessment will prematurely ‘determine’ impacts based on hypothetical and inapplicable modeling, thereby inappropriately and conclusively determining specific impacts dedicated to other regulatory authorities and reviews, or inappropriately narrowing the reasonable range of alternatives for NEPA review during subsequent permit reviews.”
• EPA’s tactic fits into broader push for CWA authority
The Assessment is part of a larger pattern of actions by EPA to unilaterally expand its authority and influence under the CWA. Two other examples:
− EPA’s push to retroactively veto a valid CWA Section 404(c) mining permit: EPA attempted to retroactively veto a duly issued Army Corps Section 404(c) permit for a coal mining operation in West Virginia. That assertion of authority has now been struck down by a U.S. District Court.
− Draft guidance to extend federal authority under the CWA: EPA and the Army Corps of Engineers have sent to the White House “Draft Guidance on Identifying Waters Protected by the Clean Water Act.” The guidance, currently pending finalization, would significantly broaden the scope of federal authority under CWA by expanding the definition of “waters of the United States.”
• Failure to follow “Regular Order” violates Executive Orders
President Obama has issued multiple Executive Orders dictating regulatory transparency, reform and efficiency. The EPA’s approachin issuing the Bristol Bay Assessment violates both the letter and the spirit of the President’s reforms.
Large-scale mining is a highly regulated activity in Alaska. Potential projects are already subjected to rigorous review under the National Environmental Policy Act and a well-established, scientifically-based permitting process that includes over 60 major state and federal permits and authorizations. This Assessment does nothing to inform that already robust regulatory regime and may actually frustrate it.
• Encroaching on State authority
The CWA explicitly recognizes states’ authority to manage water and non-federal lands within their borders. Here, EPA did not consult with the State. The lack of coordination is particularly glaring, given that the impacted lands within the watershed are largely state-owned.
• Basing decision-making on quantifiable science
In 2009, President Obama issued a directive to all federal agencies laying out guidance intended to “ensure the objectivity of any scientific and technological information and processes used to support the agency’s regulatory actions.”
The Bristol Bay Assessment is just the latest example of the EPA’s decision-making becoming delinked from such a standard. Among its deficiencies:
− Though cast as a “watershed” study, the Assessment actually cherry-picks portions of the 40,000 square mile watershed to focus on. It ignores the marine area of Bristol Bay itself, and focuses only on the Nushagak and Kvigach hydrologic units.
− Many assumptions regarding impacts cannot be supported by the existing literature.
− The Assessment focuses its impacts analysis on pure hypotheticals. It makes no reference to the environmental performance metrics mines or resource development projects are routinely required to adhere to (i.e. avoidance, minimization or mitigation of impact requirements, etc.).
− The Assessment uses inappropriate modeling/documents that had not been subject to external peer review.
The Bristol Bay Assessment singles out a project area on state land where there has not even been an application submitted for regulatory review. It could cause delay and confusion to projects all over Alaska. Unfortunately, many of these projects have already experienced extensive multi-year permitting delays, administrative appeals, and litigation from third parties, hampering the economy and holding back thousands of job opportunities for Alaskans.
Sadly, the Bristol Bay Assessment is far from an isolated example. This sort of regulatory adventurism is playing out nationwide. In such an environment, is it any wonder the economy is paralyzed?
Return to newsletter headlines
