WASHINGTON—Conservationists knew that new GOP anti-regulatory muscle in the 112th Congress would be intent on debilitating landmark legislation such as the Clean Air Act and the Clean Water Act.
But they're still taken aback by an attempt to incapacitate the latter in one fell swoop.
Next week, the full House is expected to vote on a fast-moving bipartisan bill that would elbow the federal government aside and elevate the power of state-level rules covering mountaintop-removal mining, waterways and wetlands. Even if it passes, however, the bill isn't expected to gain traction in the Senate.
Reps. Nick Rahall, a Democrat from the coal state of West Virginia where mining is king, and John Mica, a Republican from Florida where water pollution standards are less than well-defined, are swiftly shepherding the Clean Water Cooperative Federalism Act of 2011 (H.R. 2018) through their chamber.
Mica, Rahall and 34 other co-sponsors tout their bill as one that will restore a balanced partnership to a law that they say now subjugates state authority.
But none other than the Environmental Protection Agency challenges that conclusion. The agency claims the measure would "significantly undermine EPA's ability to ensure that state water quality standards are adequately protective and meet Clean Water Act requirements."
Environmentalists Alarmed; Industry Heartened
Advocacy organizations such as the Natural Resources Defense Council interpret the bill as an attempt to prevent the EPA from reversing or overruling decisions that have to do with water quality limits and permits, as well as permits pertaining to the dredging and filling of waterways and wetlands.
"This is similar to what we see going on with the Clean Air Act," Steve Fleischli, an NRDC senior attorney and water specialist, told SolveClimate News in an interview. "It undermines the EPA's effort to do its job by attacking the underlying basis for the Clean Water Act. By taking the federal out of the federal Clean Water Act, it sets us back 40 years.
"Experience tells us that didn't work out that well," he continued, "and that we do need the Clean Water Act to level the playing field."
NRDC was one of 10 environmental groups signing a June 20 letter urging representatives to reject the bill.
Not surprisingly, the National Mining Association praised Mica and Rahall for taking the initiative to provide certainty for jobs and the Appalachian economy. The trade group blamed EPA for forcing the region to bear the brunt of regulatory overreach that stymies permits for coal mining.
"By restoring the long-standing balance between state and federal regulators in the permitting process," association president Hal Quinn said via news release, "mining operations, their vendors and suppliers and small businesses throughout the region can put more people to work, stimulate local economies and get back to producing energy for the nation."
Rahall has long criticized the EPA's handling of guidance on surface mining under the Obama administration. He claims that his home state is at a competitive disadvantage because the agency has put the mine permitting process in turmoil.
"The EPA has a legitimate role to play in the Clean Water Act permitting process, and, early on in this administration, many had high hopes that the EPA would provide the clarity and certainty that coal mining constituencies throughout Appalachia have been seeking for many years," the West Virginian testified at a May 5 oversight hearing of a House Transportation and Infrastructure Subcommittee. "Unfortunately, we have been disappointed as a result of guidance that the EPA issued in April of last year.
"As a result," he continued, "coal miners in my district are constantly concerned about losing their jobs, and communities fear that they will not generate sufficient revenue to support schools and to build basic infrastructure and provide basic services."
It's clear to observers how Rahall translated his frustrations with EPA into the legislation he penned with Mica.
For instance, the bill would hamstring the agency's ability to update water quality standards and EPA wouldn't have the teeth to force states to execute upgrades.
"The safety net that the Clean Water Act provides would be removed," Fleischli explained. "We'd go back to pre-1972 where states would set their own standards and interpret their own standards. It would undermine EPA's ability to protect waterways from mountaintop mining."
In that vein, the bill takes away EPA's authority to deny dredge and fill permits that the agency finds would degrade, bury or pollute a stream.
EPA States Its Case
EPA officials laid out their concerns with the Mica-Rahall bill in a four-page June 16 analysis presented to Rep. Tim Bishop. The New York Democrat is the ranking member of the Water, Resources and Environment Subcommittee.
Broadly, EPA stated that the measure would fundamentally change the federal-state relationship outlined in the 1972 Clean Water Act because it would hinder the agency's ability to ensure an equitable level of protection provided to waterways nationwide.
For instance, authors of the analysis pointed out that the whole idea behind federal review of National Pollutant Discharge Elimination System permits is to create a "more-or-less level playing field."
"Restricting EPA's authority to ensure that states implement their programs as approved could lead to a race to the bottom as each state seeks to ensure that [its] program is no more stringent than the least-stringent state program," they wrote.
They also emphasized that the bill would thwart EPA's capacity to aid states put at risk by pollution flowing downstream from neighboring states because a state would be the final arbiter of whether a permit, license or standard protects water quality.
In addition, EPA officials stressed that the Mica-Rahall measure would keep EPA from intervening to protect local communities when the Army Corps of Engineers issues permits for inappropriate and poorly thought out projects such as mountaintop removal.
"This would fundamentally disrupt the structure established by the original Clean Water Act in 1972—a law that carefully constructed complementary roles for EPA, the Corps and the states," they wrote.
They added that the agency exercises its veto power over Army Corps permits only as a last resort when no other approach works to prevent unacceptable impacts. That has happened 13 times in the last 38-plus years.
Bill proponents dismissed EPA's arguments as being condescending to states because governors and legislators are dedicated to protecting waterways in their own back yards.
On the Fast Track
Though Mica and Rahall introduced their bill May 26, it wasn't subject to any hearing or scrutiny in the likely venue, the panel's Water, Resources and Environment Subcommittee, where Bishop is the ranking Democrat.
Instead, after a hasty announcement, it underwent a relatively quick markup in the Transportation and Infrastructure Committee — which Mica chairs — before representatives approved it on a 35 to 19 vote June 22. Democratic Reps. Jason Altmire and Tim Holden, both of Pennsylvania, joined Rahall in voting yes.
Committee members failed to approve an amendment Bishop introduced at last Wednesday's hearing that was designed to preserve the federal safeguards of the Clean Water Act.
"It would be unacceptable for states to loosen their standards for water quality, allowing polluters to simply send their pollution downstream," Bishop said about his amendment. "Under the Clean Water Act, we've made progress from the days of rivers catching on fire, but that is absolutely not a reason to take a giant step backwards."
In other remarks at the June 22 hearing, Bishop complained that committee leadership hadn't given its members proper time to review the bill's potential consequences. Giving states permission to go it alone, he added, flies in the face of science, common sense and decades of EPA experience coordinating the Clean Water Act.
"This bill is a recipe for increased pollution, dirtier waters and more mountaintop removal mining," said Jon Devine, one of Fleischli's fellow water program attorneys at NRDC. "Its supporters seem intent on taking us back to the good old days when rivers like the Cuyahoga caught fire and Lake Erie was declared dead."