The Almighty, Omnipotent, Omniscient EPA

It’s fascinating how much executive branch agencies like to endow themselves with authority not given to them by the law.  This magical (illegitimate) power is especially convenient to have when ideologically motivated goals are in the balance.  Not surprisingly, the Environmental Protection Agency (EPA) is guilty of this wizardry with regard to the Clean Water Act.

The Wall Street Journal reports (sub. req’d)  that the EPA is attempting to bypass the Army Corps of Engineers in the review process for a mining project in Bristol Bay, Alaska.  The protocol for granting permits for mining projects on state lands is to go through a federal review process conducted by the Army Corps of Engineers first, after which the EPA has the power to veto the decision. 

The project in question – one that has taken a decade and $132 million in exploring the potential to dig – could “yield substantial amounts of copper, gold and molybdenum, which is used in alloy,” according to The Hill and, according to the WSJ, it could create “upwards of 1,000 high paying jobs.” Opponents of the project fear that it could harm Bristol Bay’s sockeye salmon population which is why the state asked the EPA to do watershed testing.

The EPA conducted a shoddy, hypothetical study finding that the project would… drum roll… harm the watershed.

However, even EPA peer-review experts found the study to be unsatisfactory and rushed.  Nonetheless, the EPA is using the faulty study as a pretext for preempting the Army Corps of Engineers’ authority to do its assessment.

The EPA’s behavior is unlikely to fly in the courts, and House GOP leaders including “Rep. Darrell Issa (R-Calif.), chairman of the House Oversight and Government Reform Committee, and panel member Rep. Jim Jordan (R-Ohio) are demanding a briefing on EPA’s watershed impact tests for [the] proposed mine.”

Their letter states:

“The unusually short amount of time in which EPA prepared the Assessment raises questions about whether EPA was more interested in reaching a predetermined conclusion than in conducting a scientifically valid review.”

As for the courts, WSJ reports:

“District Judge Amy Berman Jackson noted that the EPA’s view that it could “unilaterally modify or revoke” a Corps permit “at any time” was a “stunning power for an agency to arrogate to itself when there is absolutely no mention of it in the statute.”

The WSJ summed up the situation very well:

“The EPA’s power grab is an insult to the Army Corps and especially to the state of Alaska, which has every reason to evaluate the Pebble project carefully so it doesn’t damage the state’s lucrative fishing and tourism industries.

Under Mrs. Jackson, the EPA has become less a regulator following the law and more an ideological vanguard that will push its limits-to-growth agenda as long and as far as the courts and Congress allow. Watch out in a second Obama term.”

Congress can see the problem here.  The courts can see it.  The American people can see it.  Why can’t the EPA see it?

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