Switchback Regulation and Mountaintop Mining: The Wrong Path?
Traveling up a mountain is never an easy proposition -- thin air, cold temperatures and those dizzying roads that whipsaw back and forth for miles. While I recognize the need for switchback roads to convey the traffic, I have trouble using them as a model for environmental regulation, but it seems that that is where we are today; that is, changing environmental policy 180 degrees with each change of administration. A case in point is Coeur Alaska, Inc. v. SEACC and EPA's recently announced initiative relating to mountaintop mining.
THE COEUR ALASKA CASE
The last time we saw Coeur Alaska, the company had just won their case before the United States Supreme Court and could fill a lake with sludge from their mining operations. They were allowed to do so because a Bush-era EPA policy, as set forth in a director's memorandum, said that it was acceptable for the Corp of Engineers to issue the permit without applying the performance standards of the Clean Water Act to the fill material. The Court deferred to EPA's interpretation because it was "not plainly erroneous or inconsistent with the regulation[s].”
Here we are, eighty-one days since the decision and all you can say is what a difference a few days make.
MOUNTAINTOP MINING REVIEW
On September 11th, EPA declared that all seventy-nine pending permits for mountaintop removal mining would be sent back for additional review under the term of the Clean Water Act. EPA’s concern is that these operations would “likely cause water quality impacts.”
Lisa Jackson, the EPA Administrator, attempted to emphasis that this was an "enhanced coordination process" between EPA and the Army Corps of Engineers and that it was not a change in policy. With all due respect to Ms. Jackson, I think she misspoke. It isn’t a change in law, but it is certainly a change in policy. She said as much when she told the Tampa Bay Press: “The whole permitting process had become a bit toothless.” In a year’s time, this EPA will have every molar, bicuspid, canine and incisor back in place (the jury is still out on the wisdom teeth).
THE IMPACT
The problematic holding of the Coeur Alaska case isn’t only what Coeur Alaska won, but how it won it. The Supreme Court reaffirmed that EPA has great discretion in all things environmental. In that case, the holding worked to the advantage of the business. However, that ruling (and others) also gives EPA the ability to quickly reverse the environmental policies of the past eight years. I agree that to the victor goes the spoils and that changes in many areas are appropriate. My concern is that when there is another change in EPA (one of those few guarantees in life), the road will almost certainly take a hard turn, this time to the right. And when the inevitable happens, it will turn back yet again.
In the end, maybe switchback regulation is as necessary as switchback roads. But while both will get you where you want to go, they certainly expend a lot of energy, and costs, to get there. So what's the alternative? Maybe something more permanent, like a tunnel or legislation, is preferable. Sure they both have up front costs, but at least you minimize the whipsaw effect (that is so hard on brakes and business planning).
RELATED POSTS: The Supreme Court and the Environment: Who Did They Really Help?
COEUR ALASKA, INC. VS. SEACC: When Is A Lake Really a Landfill?
ENTERGY CORPORATION VS. RIVERKEEPER, INC.
Clean Water and Mountaintop Mining No Longer Mix
