Regulatory Fairness Act sets boundaries for EPA vetoes

By U.S. Senator Lisa Murkowski

Note from RDC Executive Director Rick Rogers: In the April Resource Review, I explained the importance of our Alaska Senate delegation supporting the Regulatory Fairness Act, a bipartisan effort to put reasonable limits on the Environmental Protection Agency’s (EPA’s) 404(c) authority, given the agency’s current misguided effort to veto projects that have yet to apply for permits, and revoke valid permits after they have been issued.

Senator Murkowski cosponsored this bill, and those opposed to the Pebble project have been giving her unwarranted criticism for her principled support of due process. I am ceding space allocated for my column in this issue so the Senator can explain in her own words why she supports this legislation.

We are fortunate to have a Senator willing to do the right thing in spite of having to take political heat. Thank you Senator Murkowski!

What would Alaskans say if a federal agency retroactively vetoed permits for development of Prudhoe Bay, declaring it never should have been allowed on the North Slope?

What would we think if a federal agency unilaterally banned development in the non-wilderness portion of ANWR?

And what if a federal agency halted eff orts to reopen the Nikiski LNG terminal, without any right of appeal, because a tiny portion of the property was once considered wetlands?

While these scenarios might have once seemed far-fetched, all of them – and more – will be possible if the dramatic expansion of EPA’s power under the Clean Water Act continues unchecked.

At issue is Section 404(c) of that law, relating to permits for projects that generate dredge or fill material. Through it, EPA may restrict or deny the placement of materials at sites specified in permit applications submitted to the Army Corps of Engineers.

Before the Obama administration, EPA invoked its veto authority just 12 times, and only after formal environmental reviews had been conducted. With thousands of permits sought each year, this represented a track record of judicious use. But recently, we have seen an abrupt departure from that approach.

In 2011, EPA retroactively vetoed a permit that had been issued in West Virginia four years earlier. In Alaska, EPA appears poised to issue its first-ever preemptive veto, even before a final plan for development is presented.

This comes on top of our near-constant disputes with EPA over resource development. To name just a few examples, we have repeatedly seen the agency seek to delay or halt development in NPR-A, near the Tanana River, at Kensington, at Usibelli, and in the off shore Arctic.

EPA’s cumulative actions, both in Alaska and elsewhere, led me to cosponsor S. 2156, the Regulatory Fairness Act. Authored by a Republican from Louisiana and a Democrat from West Virginia, this bill would help restore due process for project developers and restore their confidence – eroded during the Obama Administration – that federal permitting process will be timely, predictable, and fair.

This bipartisan measure does not eliminate EPA’s veto power or prohibit the protection of any lands and waters. It does not make it easier for a project to win approval, or weaken the environmental review process that major projects must undergo.

Instead, the bill establishes a reasonable and reliable time frame for EPA to issue any vetoes it determines necessary. The agency will still be allowed to take those actions during the permitting process, just as it did during prior administrations.

If Congress does nothing, EPA will hold eff ectively limitless veto power. The agency will be capable of rejecting projects before they even seek permits or clawing back permits for projects that already have them. As project developers realize they cannot count on a fair process, or the long-term validity of any permit they may acquire, investment in our state and country will plummet.

I have great respect for the people of Bristol Bay. For me, fishing is part of being Alaskan. My sons have worked in the Bristol Bay sockeye fisheries, I have fished many times in the region, and throughout my career I have demonstrated my steadfast support for subsistence, recreational, and commercial fisheries in our state. I understand and agree with many of the concerns raised about the potential Pebble mine. That’s why I have reserved judgment on it – and why I am committed to the full protection of the world-class fisheries in the area.

But a preemptive veto is not the best or only way to achieve that goal. It is important to keep in mind that EPA has full authority to deny permits during its review process, when it will also be possible to assess specific impacts. EPA Administrator Gina McCarthy confirmed that to me just a few weeks ago, and that authority would not change under the Regulatory Fairness Act.

U.S. Senator Lisa Murkoswki

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