Hearing of the House Transportation and Infrastructure Committee - Rein in EPA's Permitting Overreach

Hearing

Following the recent move by the Supreme Court not to consider the Spruce Mine case, U.S. Rep. Nick J. Rahall pushed for congressional action to put an end to the EPA's Clean Water Act permitting overreaches. Today, the House Committee on Transportation and Infrastructure, where Rahall is the top Democrat, advanced H.R. 524, a bill introduced by U.S. Rep. David McKinley (R-WV) that puts an end to the EPA's practice of retroactively revoking permits they issue. Rahall is an original cosponsor of the bill.

"The EPA's overreach threatens coal industry jobs, but it's also a direct threat to economic activity in communities across the country," said Rahall. "What good is a permit if it can be retroactively taken away, sometimes years later? I appreciate the Committee's action today to address this situation moving forward. Allowing the EPA to continue to do business like this will have a chilling effect on our economy and public construction projects nationwide."

Four years after the Army Corps of Engineers issued a Clean Water Act 404 permit for the Spruce Mine in 2007, the EPA claimed it had the authority to veto the permit despite having participated in the process leading to its issuance in the first place. In 2012, the U.S. District Court for the District of Columbia ruled against EPA accusing it of "magical thinking" in justifying its claim that it has the right to retroactively veto a permit. However, the U.S. Court of Appeals for the D.C. circuit overturned that ruling last year.

Late last month, in the aftermath of the U.S. Supreme Court not reviewing the appellate court's ruling affirming EPA's retroactive revocation of a mining permit for the Spruce No. 1 Mine in Logan County, Rahall worked with Transportation and Infrastructure Committee Chairman U.S. Rep. Bill Shuster (R-PA) to ensure that the underlying issue in the case is addressed legislatively in order to prevent it from happening in the future.

Rahall spoke in favor of H.R. 524 during today's Committee markup, pointing to a brief filed by 27 Attorneys Generals that, among other things, stated: "The bottom line is that the D.C. Circuit's decision threatens every ongoing and future public construction project that requires a 404 permit, and therefore warrants review. Billions of taxpayer dollars, innumerable work hours and material resources, much-needed jobs, and the reliance interest of millions of Americans are now at greater risk."

Rahall's full opening statement can be found below:

Mr. Chairman, while the genesis of this legislation lies with the retroactive veto of a duly issued section 404 Clean Water Act permit for the Spruce Mine in West Virginia, the issue the bill seeks to address transcends that particular situation, and coal mining itself.

EPA clearly has the authority to veto a pending section 404 permit, and has done so 12 times. However, the Spruce Mine permit, EPA's 13th veto, was the only one to come after a permit had already been issued.

Let me emphasize that: The veto came after the permit had already been issued. In fact, four years later.

This is why the Attorneys General from 27 States filed an amicus brief with the U.S. Supreme Court urging it to review a court ruling that sided with the EPA. In their brief, they took issue with the D.C. Circuit's decision that EPA had the power to veto a permit at any time.

They wrote, and I quote:

"From coast to coast, highways, bridges, hydroelectric dams, and water reservoirs -- just to name a few -- are all at increased risk of cancellation by a federal agency that often vacillates with the political winds."

They noted, and I quote:

"The ever-present specter of EPA intervention heightens the fear that a shift in the political winds will make worthless years of "planning and spent resources, and creates a disincentive to future public investment."

And they concluded, and again I quote:

"The bottom line is that the D.C. Circuit's decision threatens every ongoing and future public construction project that requires a 404 permit, and therefore warrants review. Billions of taxpayer dollars, innumerable work hours and material resources, much-needed jobs, and the reliance interest of millions of Americans are now at greater risk."

I would point out that while some of the States who joined in on the brief were from coal producing States, the majority were not. Included were the Attorneys General from States such as Arizona, Arkansas, Florida, yes, Florida, Georgia, Michigan, Missouri, Nevada, South Carolina, and Wisconsin.

In ruling against EPA, a lower court accused the agency of resorting to "magical thinking" in justifying its action to retroactively veto the Spruce permit. I concur.

If allowed to stand, this decision will have a chilling effect on virtually every form of economic development in the United States.

Even if you are a supporter of EPA, this is a clear case of overreach by a federal agency.

I strongly support the bill and urge its passage.

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