The beauty of a government agency, if there is such a thing, is that it is only supposed to do what the public policy makers have empowered it to do.
Of course, sometimes agencies do go rogue. The Environmental Protection Agency is a classic example.
Several years ago the EPA decided to make it harder for coal mine operations—particularly mountaintop removal mines—to get the necessary permits. The agency came up with particularly stringent water quality standards that it claims are necessary to protect aquatic life downstream.
At the time, EPA Administrator Lisa Jackson crowed, “You’re talking about no, or very few, valley fills that are going to meet this standard.”
Since then, mine permitting has slowed dramatically. According to the National Mining Association, of the some 460 dredge and fill permits pending between 2009 and the end of last year, only 142 were issued while 140 were withdrawn in frustration.
The rest are delayed in a bureaucratic netherworld.
There’s a slight hang-up, however, to the EPA’s quest for Jackson’s Holy Grail of what she terms “environmental justice.” The EPA doesn’t have the authority to do what it did.
Federal Judge Reggie Walton ruled this week in a suit filed by the National Mining Association that the EPA “ overstepped its statutory authority… and infringed on the responsibility allocated to state regulators.”
The states and the U.S. Army Corps of Engineers have primary responsibility for approving surface mine permits. The EPA maintains some oversight, but once the state permitting programs are approved, the EPA’s jurisdiction is limited.
The crafty EPA tried to circumvent standard operating procedure by issuing what the agency termed “final guidance” for the regulating agencies to follow on water quality.
In a classic Catch-22, the EPA said that the guidance “is a policy statement, not a legislative rule.” Since it’s not a final rule, the EPA argued, it was not open to a legal challenge by the mining industry under the federal Administrative Procedures Act.
So, to review, the EPA elbows its way into the regulatory domain of the states and the U.S. Army Corps of Engineers, forces coal operators to reduce the salinity of the discharge water to protect the mayfly, and then, when sued, claims it’s only making “suggestions” and “recommendations.”
Nice try. Thankfully, Judge Walton saw through the EPA’s charade.
The judge did point out, however, that his decision has nothing to do with the ongoing debate about the economic and environmental impacts of mountaintop removal mining.
“How to best strike a balance between, on one hand, the need to preserve the verdant landscapes and the natural resources of Appalachia and, on the other hand, the economic role that coal mining plays in the region is not, however, a question for the Court to decide,” the judge wrote.
Fair enough. Let the public policy makers and the affected parties fight that out. And frankly, because of the destructive nature of mountaintop removal mining, it’s a tough sell for the industry.
But in the meantime, the EPA needs to get back in line.