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EPA Enforces the Clean Water Act, Predictable Attacks on Agency Authority Follow

Jon Devine

Posted January 18, 2011 in Curbing Pollution, Environmental Justice, Health and the Environment, Living Sustainably, Saving Wildlife and Wild Places, U.S. Law and Policy

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As my colleague Melissa Waage wrote last week, the Environmental Protection Agency made a science-based and legally justified decision to prohibit a massive mountaintop removal coal operation – the Spruce No. 1 Mine in West Virginia -- from dumping its waste in over six miles of Appalachian streams.  This decision was not objectively hard, as the mine would cause extreme damage by burying some of the few remaining high-quality streams in the area, degrading downstream water quality, and disturbing in excess of 2,200 acres of mountain and forest land, among other things.  Because EPA has the authority under the Clean Water Act to “veto” proposals to discharge “fill” material (which this mine company’s waste would be considered, thanks to a Bush administration revision to the national water pollution regulations) into water bodies whenever the agency concludes 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,” the veto was really a slam-dunk.

But even easy decisions these days seem to be tough to make, given the theme being repeated by some politicians and pundits that the Obama administration is attacking American industry with a host of “job-killing” regulations.  EPA’s decision about the Spruce Mine was no exception – a press release from Congressman Don Young of Alaska declared it an “underhanded move by an Administration determined to stop American growth and development.”

I think it’s worth a second to consider the absurdity of these kinds of claims – why, exactly, would our national leaders set out to destroy jobs under the guise of health, worker, and environmental protections?  Spite?  Political suicide?  Falling for our international economic competitors’ trick of declaring it “Opposite Day”?  Apparently, it is out of the question that government officials instead have concluded that a sustainable economy is one that does not endanger public health, values worker safety, and protects the environment from unreasonable degradation.  Oh, and forget about the law – the administration couldn’t possibly be enforcing the law, could it?  Of course this is all a bunch of nonsense.  As unserious as this “job-killing” mantra is, if you are interested in excellent and substantive critiques of it, my NRDC colleagues David Goldstein, Scott Slesinger, and John Walke take it apart. 

But don’t expect the coal industry’s political pep squad to let rational analysis, scientific evidence, or the law stand in their way.  Rather, it appears as though they’re planning to try to change the law to shield the coal industry from the scientific scrutiny that the law provides for.  Representative Young declared his intention to re-introduce legislation to strip EPA of its “veto” authority (an authority the agency has only found it necessary to invoke 13 times in the history of the 38-year-old Clean Water Act, reserving it for the worst of the worst proposals).  And I suspect it’s not going to be too long before the members of Congress responsible for the so-called “Electricity Reliability Protection Act” -- which would suspend both an EPA-Army Corps of Engineers agreement establishing a process for reviewing dozens of Appalachia coal mine proposals and a document describing how EPA permitting experts would consider scientific evidence of mine projects’ impacts on downstream water quality -- introduce that bill or some similar measure in this Congress.

These attacks on responsible oversight of the coal industry are not only wrong-headed, they’re out of touch with strong public sentiment.  As the late Senator Byrd, a longtime coal proponent, said: “Most members of Congress, like most Americans, oppose the practice, and we may not yet fully understand the effects of mountaintop removal mining on the health of our citizens.”  

Nevertheless, I am convinced that the anti-EPA rhetoric and efforts to keep it from doing its job will persist and that the only effective response will be a strong public push to let the agency enforce the law and to keep the law in place.  The good news is that Americans are willing to stand up against mountaintop removal; for instance, the agency received over 50,000 comments when it proposed to “veto” the waste dump associated with the Spruce Mine, and roughly 70 percent of the comment letters supported EPA.  When the next threat comes (as it surely will) we will need similar public support, so please watch this space for information about how to help repel the attacks on the Clean Water Act and on EPA’s ability to carry out the law.  In the meantime, please tell your Representative to oppose Representative Young’s bill to repeal the Clean Water Act provision that gives EPA the authority to “veto” unacceptable fill projects (click here for a list of Representatives’ office phone numbers).

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Switchboard is the staff blog of the Natural Resources Defense Council, the nation’s most effective environmental group. For more about our work, including in-depth policy documents, action alerts and ways you can contribute, visit NRDC.org.

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