Tag Archives: Clean Water Act

A Quick Update on MCRC v. EPA at the Sixth Circuit (With Several Additional Updates)

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EagleTrucksAAA

Ore trucks from Eagle Mine.

I’ve been doing my best to keep track of developments in Marquette County Road Commission v. EPA, the litigation over County Road 595 in Michigan’s Upper Peninsula. CR 595 was conceived and planned as a haul route from Eagle Mine to Humboldt Mill. From the outset, the project was a cause of public contention. As plans to cut through wilderness and destroy wetlands to build the road met with objections from the permitting authorities, the companies operating Eagle Mine — first Rio Tinto, then Lundin Mining — stayed on the sidelines, or worked quietly behind the scenes, leaving the people of Marquette County to slug it out with the federal government, and with each other.

The latest entry in the CR 595 legal saga looks like a win for the EPA, or at least a point in its favor. Last week, on Thursday, March 1, Ellen Durkee, the DOJ attorney representing the EPA, submitted a one paragraph letter to the U.S. Court of Appeals for the Sixth Circuit about a Ninth Circuit case called Southern California Alliance of Publicly Owned Treatment Works v. EPA. This is another piece of litigation over Section 402 of the Clean Water Act.

The plaintiff in this case was making an argument similar to that made by Mark Miller, the Pacific Legal Foundation attorney representing the Marquette County Road Commission before the Sixth Circuit: that EPA objections were tantamount to a permit denial (or what Miller insisted on calling a “veto”). If we follow Miller’s argument, the Marquette County Road Commission would have had no recourse after the EPA weighed in on its plans. In administrative legal parlance, the EPA’s objections to the Road Commission’s permit application would constitute “final agency action,” and could therefore come up for review by the court.

But in Southern California Alliance, writes Durkee, “the Ninth Circuit explained that under the statutory scheme, EPA objections are not functionally similar to a permit denial and that a challenge to EPA objections is premature.” That decision, made back in April of 2017, would seem to lend more support to the federal government’s position, that EPA objections merely constitute an “interlocutory step.” There is nothing final about them at all. So when it came to the permit application for CR 595, the Michigan DEQ still had three options: grant, deny, or do nothing. This was a point Judge White highlighted when she questioned Miller about the word “veto” during oral argument before the Sixth Circuit.

There was a new development in the Ninth Circuit case just last month, which is what prompted Durkee’s letter to the Sixth Circuit. On February 20th, the Supreme Court declined a petition to review the Ninth Circuit decision in Southern California Alliance. This means the Ninth Circuit’s ruling stands, and it might help bolster the EPA’s argument in the Sixth Circuit. It also suggests that the Supreme Court would probably not be favorably disposed toward a new petition for review on a point of administrative law it has just left up to a lower court. Miller, who has vowed publicly to take this case to the Supreme Court if the Road Commission does not prevail at the Sixth Circuit, might have to check his ambition.

Update: A Decision. On March 20th, 2018, the Sixth Circuit agreed with and affirmed the district court’s decision to dismiss the Road Commission’s complaint. Miller’s argument that EPA objections were tantamount to a “veto” and constituted final agency action failed to win over the three judge panel. “Though the Road Commission characterizes EPA’s objections as a ‘veto,’ the facts show that EPA’s objections did not end the Road Commission’s pursuit of a Section 404 permit. To the contrary, when EPA lodged objections, the permit review process continued precisely as directed by statute.” Given what I say here about Southern California Alliance, this looks like the end of the road.

Another Update. 9 April 2018. A story by Cecilia Brown in the Mining Journal suggests this case may take yet another turn. Dissatisfied with the March 20th decision by the three judge panel, the Road Commission is now asking for an en banc hearing at the Sixth Circuit. And if that doesn’t work out, they have “authorized” the Pacific Legal Foundation to seek review at the Supreme Court. For reasons I suggest above, I think it’s unlikely the Supreme Court will grant certiorari (or review the case). So far as I can tell from the docket, the Road Commission had not yet filed a petition with the Sixth Circuit requesting en banc review.

Yet Another Update. On May 2nd, Michael J. Patwell of Clark Hill , PLC and Mark Miller of the Pacific Legal Foundation filed a petition for an en banc hearing at the Sixth Circuit. This would bring the Road Commission’s case against the EPA before all the judges in the Circuit, and ask them to revisit the March 20th decision by the three judge panel.

The petition acknowledges that “this Court rarely rehears a case en banc” but then tries to argue that this case involves “an exceptionally important question of federal jurisdiction.” Oddly enough, the petition does not back down from the argument that EPA objections to the Road Commission’s permit “crystalize into what amounts to a veto” — an argument the Sixth Circuit panel met with skepticism at the hearing, then explicitly rejected in its opinion. So an en banc hearing at the Sixth Circuit would seem unlikely.

Petition for En Banc Hearing Denied, 29 May 2018. Today, Beverly L. Harris, the En Banc Coordinator for the Sixth Circuit, notified Mark Miller of the Pacific Legal Foundation that his petition for an en banc hearing has been denied. This comes as no surprise. The original three-judge panel found no fault with their decision, observing that “the issues raised in the petition were fully considered upon the original submission and decision of the case. The petition then was circulated to the full court. No judge has requested a vote on the suggestion for rehearing en banc.” As I noted back on April 9th, there are reports that the Marquette County Road Commission has authorized Miller to pursue this matter to the Supreme Court. After not a single judge took Miller up on the en banc review, it seems unlikely that the nation’s highest court would find anything irregular or meriting review here.

Mandate issued. On Thursday, 7 June 2018, the Sixth Circuit issued a mandate in MCRC v. EPA. This suggests, among other things, that Pacific Legal Foundation’s Mark Miller did not seek a stay of mandate — which he might have done were he ready to petition the Supreme Court.

A Comment on the Aquila Back Forty Wetland Permit

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AquilaWetlandMap

An Aquila Resources map outlines the wetlands that will be impaired by its open pit sulfide mine on the Menominee River.

Earlier this morning, I sent this comment on the Aquila Resources Back Forty Wetland Permit to the Michigan Department of Environmental Quality. Public comments may be submitted here until February 2nd.

To the MDEQ:

You have probably already received a number of comments on the Back Forty Mine wetland permit application from people who live out of state, as I do. Some of those opposed to sulfide mining on the Menominee River live on the Wisconsin side, just across or downstream from the proposed mine site. Others, across the country and around the world, are deeply concerned about the cumulative effects the current leasing, exploration, and sulfide mining boom around Lake Superior will have, and are alarmed to see federal and state regulatory agencies abdicating their responsibilities to the American public in order to do the bidding of foreign mining companies.

Denying the wetland permit is the only prudent and responsible course for MDEQ to take.

As the organization American Rivers noted when it placed the Menominee River on its list of “most endangered” rivers in 2017, the Aquila Resources Back Forty project poses a “significant threat” of acid mine drainage to the river, and to the “cultural and natural resources of the Upper Peninsula, Wisconsin, and the Great Lakes Region.” Allowing Aquila to destroy or compromise area wetlands to construct its mine will only heighten the risk of large scale environmental catastrophe.

The risk is compounded by both regulatory and scientific uncertainty. As you are well aware, the Menominee Tribe maintains that the MDEQ lacks authority to issue this permit, because under provisions of the Clean Water Act the Menominee River and its wetlands are federal waters. This question remains unsettled. In the meantime, a third party, independent review of Aquila’s wetland permit application found errors and inconsistencies regarding the company’s findings on groundwater drawdown and the mine’s feasibility analysis. The wetland permit application you are considering is either flawed, because the people who filed it are incompetent, or misleading, because they have something to hide.

Deceit might be Aquila’s best strategy at this point. The Back Forty project has no claim to social license — none. The Menominee and other Wisconsin tribes have been adamant in their opposition. Local residents are overwhelmingly opposed as well. Of the 90 people who had the opportunity to speak at the January 23rd public hearing in Stephenson, only 4 could muster an argument for the mine, mainly because they put stock in the vague promise of “jobs” made by mining proponents. The rest — 86 out of 90, or 95 percent — stood in opposition to the mine.

Even if Aquila is not deliberately misleading the MDEQ and the public, the Canadian company has demonstrated time and again that it is not a responsible steward of Michigan or Menominee lands. In archaeological surveys of the region, for instance, Aquila claims to have uncovered nothing of “historical significance.” That is telling. These surveys have found nothing because they fail, or refuse to see, the significant Menominee history and culture that is right in front of their eyes. As tribal members have made repeatedly clear, Menominee history, ancestry, and culture begin and end in the river, the land, and the forest. What is historically significant or meaningful is not merely a collection of artifacts; it is a way of life and a deep connection to place. The Back Forty Mine threatens to destroy that connection.

In sum, the wetland permit application is flawed, the company has no social license to operate, and allowing the Back Forty to go forward would violate the public trust.

Postscript: On Monday, 4 June, Michigan DEQ Director Heidi Grether granted this wetlands permit, despite the DEQ’s own findings that the Aquila Resources project will likely cause “an unacceptable disruption to the aquatic resources of the State…and that the activities associated with the project are not consistent with the permitting criteria for an acceptable impact to the resources regulated under Parts 301, Inland Lakes and Streams, and Part 303, Wetlands Protection.” The permit DEQ issued — over its own objections — includes 28 pages of special conditions. It’s unclear why the DEQ did not simply deny the permit, as its findings warranted and in keeping with EPA objections to the Aquila application. More here.

The Political Project Continues, Even if the Case is Dismissed

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Earlier this week, the EPA filed its Brief in Opposition to the Motion to Alter or Amend Judgment in Marquette County Road Commission v. EPA, requesting that Judge Robert Holmes Bell stick with his dismissal of the case. Just a day later, State Senator Tom Casperson, chief political architect of the MCRC lawsuit, was defeated by Jack Bergman in his primary bid to run against Lon Johnson for Dan Benishek’s seat in the U.S. House of Representatives.

Prospects for the haul road are dimmer than ever, reduced to a fine point of administrative law — namely, whether EPA’s objections constitute “final agency action” or are merely “an interlocutory step” that continues the administrative process. (If the latter, the case remains dismissed.) In the likely event of the lawsuit’s failure, Stand UP, the dark money organization funding it, might fold or it might try to convert itself to other political purposes. As a 501(c)(4) it can legally do that, as long as it continues to satisfy the vague requirements of a “social welfare” organization.

Casperson still has two years left to serve as a Michigan State Senator; and while he was unable to translate gripes about federal overreach into victory on a bigger political stage (to hear him tell it, people below the Mackinac Bridge just don’t get it), Bergman, the Republican candidate, seems just as hostile to effective environmental regulation. He is, for instance, an advocate of the REINS Act (S. 226 and H.R. 427), a cynically designed piece of polluter-friendly legislation that aims to undermine rules like the Clean Water Act and allow politicians and lobbyists to second-guess science. So it’s important to remember that the Road Commission’s lawsuit over the haul road has always been bound up with a larger, coordinated political project, and that project will continue well after the judge considers the last brief in this case.

The Political Project of MCRC v. EPA, Revisited

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Judge Robert Holmes Bell dismissed the Marquette County Road Commission’s case against the EPA back in May, and last week the Road Commission’s attorneys at Clark Hill PLC filed a motion to alter and amend that judgment. They complain that the Court’s dismissal for failure to state a claim is not only mistaken on points of law but, more dramatically, it allows the “EPA and the Corps to wage a war of attrition on local governments seeking to protect the health and welfare of their people.”

I was struck by this inflammatory piece of political rhetoric about federal overreach for a couple of reasons. First, because it’s just the sort of hyperbolical language Michigan State Senator Tom Casperson and StandUP, the 501c4 dark-money organization funding the Road Commission lawsuit, have used to frame the case for County Road 595 and advance what, in a series of posts (1, 2, 3, 4) last summer, I called the political project of MCRC v. EPA. Second, because the motion here tacitly admits that mining activity on the Yellow Dog Plains has put “the health and welfare” of people in Marquette County at risk. Rio Tinto and then Lundin Mining proceeded with their plans to mine copper and nickel at Eagle Mine and truck it to Humboldt Mill without a clear haul route. They not only went ahead; they were permitted by the state to do so. The risk was transferred to the public.

This is a familiar pattern, but the story it tells is not about federal overreach or intrusive oversight. Quite the opposite: it’s a story about mining companies rushing projects into production without due consideration for the communities in which they are operating, regulatory capture or lax oversight and enforcement, and elected officials who all-too-easily and all-too-conveniently forget where their real duties lie.

The June 13th motion doesn’t often have recourse to this kind of language. For the most part, the motion deals with fine points of administrative law, citing a few cases that it claims the court misread or misapplied. Probably the most important of these is the Supreme Court’s discussion of the Administrative Procedure Act in a May 2016 opinion, United States Army Corps of Engineers v. Hawkes Co.. (Miriam Seifter explains Hawkes over at ScotusBlog. Even with her very clear analysis in hand I can only hope to make a layman’s hash of things.)

In Hawkes, a company that mines peat for golf-putting greens — a process that pollutes and destroys wetlands — sought an appeal of “jurisdictional determinations” by the Army Corps of Engineers that wetlands on their property were subject to the Clean Water Act.

The “‘troubling questions’ the Clean Water Act raises about the government’s authority to limit private property rights” came up for some brief discussion in Hawkes, notes Seifter, but that was not the main focus of the Supreme Court opinion. The case instead revolved around the question whether jurisdictional determinations are “final,” which in this context means they constitute an action “by which rights or obligations have been determined, or from which legal consequences will flow.”

The Army Corps in Hawkes maintained that appeals of the Corps’ jurisdictional determinations should not be allowed, because the determinations of the Corps are still subject to review and are not “final” or binding. The court found unanimously in favor of the peat-miners, saying that determinations by the Corps were final — they would put legal constraints on the peat-miners, who would have to stop polluting or face penalties — and therefore could be reviewed in court.

In MCRC v. EPA, the Road Commission now seeks a decision along similar lines. “The Court erred,” the motion complains, “by holding that EPA’s veto was not ‘final’ because Plaintiff could submit a new application to the Corps.”

In other words, the court held that the EPA’s objections to County Road 595 weren’t the last word: they didn’t constitute “final agency action” and did not entail legal consequences or impose obligations the Road Commission didn’t already have. The Road Commission can even now take EPA’s opposition to the road under advisement, go back to the Corps and seek a new permit. They can continue to work with the EPA, whose objections to the road are “tentative and interlocutory”: there is still room for conversation.

The attorneys for the Road Commission don’t deny that the Road Commission could have gone back to the Army Corps of Engineers; but they say that it would have been time consuming, burdensome and ultimately futile, as the Corps had joined the EPA in its objections to the road, and the EPA’s objections had the effect of a veto.

This brings us back to the arguments advanced in the original complaint. The EPA didn’t just object to the Road Commission’s proposal; they unfairly vetoed the new road, in a “biased and predetermined ‘Final Decision’.” The Final Decision, according to the motion, took the form of a December 4, 2012 objection letter from the EPA to the Marquette County Road Commission, to which the Road Commission replied on December 27th. They did not receive a reply, and the EPA’s failure to reply was tantamount to a “refusal.”

The EPA’s refusal (or failure) to reply to the Road Commission’s December 27th letter indicated that their objections had “crystalize[d] into a veto,” according to the motion. “Unequivocal and definitive,” a veto is a final agency action, “akin” to jurisdictional determinations made by the Corps. What legal consequences flowed from the veto? For starters, the EPA’s Final Decision divested the state, specifically the Michigan Department of Environmental Quality, of any further authority in the matter.

While this is not a new position for the Road Commission, the way the motion lays it out is nonetheless clarifying. The discussion of Hawkes, especially, brings into focus the question before the court — a question of administrative law concerning the “finality” of the EPA’s objections to CR 595. Of course that question entails others: whether the EPA’s failure to reply to the Road Commission’s letter of December 27th amounts to a refusal of the Road Commission, whether that refusal, in turn, crystalized their objections into a veto, and whether EPA vetoes are really “akin” to jurisdictional determinations by the Corps.

Stronger accusations are only being held at bay here. For example, it would be difficult to read the EPA’s failure to reply to the Road Commission’s December 27th letter as a deliberate refusal to reply without accepting the original complaint’s charges of bias and allegations of conspiracy at the EPA, or indulging its witch hunt for “anti-mining” attitudes and its demonizing of “activists.” But even if we are not willing to follow the plaintiff down that dark road, it would also be difficult, now, to overlook the serious dysfunction and administrative incompetence exposed by the Flint Water Crisis, which cost the head of EPA Region 5 her job, and which showed the world just how broken the system of environmental governance is in Michigan.

Dialogue at the Rock

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Wisconsin Department of Natural Resources aerial photo of Flambeau Mine, after reclamation.

Wisconsin Department of Natural Resources aerial photo of Flambeau Mine, after reclamation.


Bill Rose, Professor Emeritus at Michigan Technological University, hopes the big rock brought over to the university from Eagle Mine — three and a half tons of nickel-copper sulfide, suffused with platinum and rare elements — will be a site for respectful gatherings. Rose says he wants to get beyond divisive and fruitless “bickering” over mining, and hopes for “constructive dialogue about mining, its opportunities and threats.” That’s a conversation many people in the Upper Peninsula have been trying, and mostly failing, to have for more than a decade.

Building dialogue about mining is notoriously difficult, even in the friendliest jurisdictions. Part of the trouble — but only part of the trouble — is that companies come to the table having invested enormous amounts of capital (and usually in a panic to service their debt and start delivering for shareholders). They are focused on the short term and the near horizon. It’s not surprising they often refuse to listen, listen badly, or try to co-opt the dialogue from the outset; and that puts people on guard. Public participation usually gets kettled to “public comment” periods overseen by a government agency or sham community forums (like the ones Rio Tinto tried to stage in the Marquette area back around 2012 and 2013). Before too long, ordinary people realize decisions about the place they live are being made elsewhere, without them.

Professor Rose says he wants “the public to participate,” but it’s unclear from his remarks (as reported) exactly he means by that, or how far beyond gawking at the big rock and marveling at new mining technology he and his colleagues want public participation to extend. Where does his invitation lead? The dialogue about mining seems to be already set within a familiar public relations narrative that is rushing toward conclusions.

This narrative features the idea that sulfide mining can now cover its tracks through reclamation and water treatment, leaving no lasting effects. So Dean Wayne Pennington (who was on hand to announce the revival of a mining engineering as a degree program at MTU) expressed confidence that new mining methods will “ensure that no legacy situations are left for future generations.” In this context, “legacy” is code for water pollution. Examples of sulfide mining’s toxic legacy are not hard to find. Some examples of “no legacy” mining would have helped Pennington’s case.

The stock example from Eagle Mine public relations — which has also been used in promoting the Polymet project in Minnesota — is the Flambeau Mine near Ladysmith, Wisconsin. Flambeau is a Rio Tinto/Kennecott project advertised as a sulfide mining reclamation success story, despite repeated litigation over less than satisfactory water quality results. The mining company won in the courts, but Flambeau remains controversial.

For his part, Rose likened “mining with environmental responsibility” to dentistry. That is not supposed to make you squirm in your chair; it’s meant to reassure people that new technology will be sufficient to address environmental concerns about sulfide mining. It also goes further, portraying mining as therapeutic — an extraction necessary to relieve pain and maintain health. Before the conversation even gets underway, we are being asked to accept technology as a proxy for responsibility and to see mining as a way of caring for the earth.

This is the story created around the big rock at Michigan Tech: the greening of mining and the benevolent power of technology. Mining is being naturalized here — made part of or partner to nature; nature, the earth itself is being remade and reclaimed by new mining technology. This theme emerged again with a new twist at the dedication ceremony, when Michigan Geological Survey Director John Yellich stood beside the big boulder to push for a new geological survey.

Yellich started out praising the “infrastructure” of the UP: “we have electrical, we have internet access and we have roads better than what [they] were.” But in a confusing turn, he moved quickly — in the same breath — from talking about mining-friendly infrastructure to talking about “people coming in and enjoying what we have here in the UP.” Yellich was obviously trying to find a way to finish his statement for the TV cameras, and end on a positive note; so he played the Peninsulam Amœnam card, and talked about mining in language ordinarily reserved for tourism.

For a brief moment, we were asked to imagine that haul roads (a continuing source of controversy and litigation around the Eagle Mine project) were scenic lakeside byways for Sunday drivers or winding paths through a quiet wood, and that UP tourism would benefit directly from further mining development.

It appears this new dialogue about mining is already off to a confusing, false start.

The Political Project of MCRC v. EPA, 4

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Fourth In A Series

A still from a Tom Casperson campaign spot, in which Casperson (left) says the UP is “truly someplace special…now facing truly special challenges,” among them, “standing against the EPA and the unreasonable overreach of other agencies.”

Demagoguery

Michigan State Senator Tom Casperson is the most visible political figure associated with the MCRC v. EPA lawsuit, the agent if not the author of its political project. We don’t know exactly what or how much he did to encourage members of the Marquette County Road Commission to take the EPA to court, what assurances were given and what expectations were put in place, as at least some of those meetings appear to have been conducted on the down low (and in violation of the Open Meetings Act). But the Escanaba Republican has never been shy about his support for CR 595 or his hostility toward the EPA.

Brian Cabell is stating what seems obvious when he links Casperson’s support for CR 595 to his business associations with timber and trucking in the Upper Peninsula, and it’s reasonable to believe that timber interests are among the donors to Stand U.P., the 501c4 dark money association funding the Road Commission’s lawsuit against the EPA. Before entering public life, Casperson succeeded his father as owner and operator of Casperson & Son Trucking, a log-trucking business started by his grandfather and based in Escanaba, Michigan. Associations like the Michigan Forest Products Council, the Great Lakes Timber Professionals and the Michigan Association of Timbermen support and celebrate the Senator’s achievements.

But those relatively direct and straightforward business associations are probably not the only ones in play here, and in supporting CR 595 and encouraging the CR 595 lawsuit, Casperson appears to be doing more than a little favor for himself and his friends back home in the timber and trucking industries. While a 2013 tally of Casperson’s supporters shows — not surprisingly for a Republican politician in the UP — that Michigan mining, timber and fossil-fuel PACs have been among his biggest backers, I suspect the MCRC lawsuit will serve an even deeper and more shadowy entanglement of alliances and alignments.

In parts 1, 2, and 3 of this series, I’ve described the formation of a political authority, or power bloc, that now pretends to direct economic development in the UP and decide what’s in the region’s best interests. That project is closely bound up with Casperson’s own political ambitions, and those ambitions are hardly limited to advocating for this haul road. Tom Casperson covets a seat above his current station, a role on the national stage; or at least he once coveted that bigger role, and politicians don’t often reconcile themselves to less power than they think they deserve. In 2008, Casperson ran against Bart Stupak to represent Michigan’s first district in the U.S. Congress. He made a pretty good showing, with nearly 33% of the vote against the incumbent’s 65%. With Stupak’s successor Dan Benishek announcing in March that in 2016 he’s running for a fourth term (after pledging to serve only three terms), Casperson will have to cool his heels until 2018. In the meantime, however Senator Casperson has a constructive role to play.

Casperson gained a certain notoriety in 2013 when he expressed doubts during a radio interview about whether President Obama was born in the United States, but he never found his footing as a birther, at least not in public. He’s spent most of his political career fighting the EPA and the regulation of industry in Michigan. That’s apparently where his heart is. Back in 2008, when he ran against Stupak, Casperson represented oil drilling as “lining up with my core beliefs.” At the time, he also claimed that the National Environmental Protection Act (passed in 1970) has regulators “walking around looking for amoebae on the ground so that they can find something to block timber sales,” and whined that environmentalism was “bringing the country to its knees.”

In 2011, Senator Casperson introduced a resolution (SR-10) “to impose a moratorium on greenhouse gas, air quality, and other regulatory actions by the Environmental Protection Agency” and require the EPA to account for the cumulative economic effect of “all regulatory activity” on climate change, air quality, water use, and coal ash. He recently joined Dan Benishek in opposing the Obama administration’s modifications of the Clean Water Act as “regulatory overreach” — echoing the point urged by other conservative opponents of the rule, who lined up obediently behind mining, fossil-fuel and energy producers, big agriculture and fertilizer companies like Koch.

Blaming the “war on coal” — the phrase itself is borrowed from the lexicon of climate change denial — for the closing of Marquette’s Presque Isle coal plant, Casperson warns that “there is no bigger threat to affordable, reliable electrical service to our districts than the EPA.” He grandstands about the EPA at every opportunity: “At some point,” he said back in March, “somebody’s got to take a stand here or they will take our way of life away from us. Clearly, they don’t like mining, clearly they don’t like timbering and quite frankly it appears they don’t really care much for us using the great outdoors unless they give us their permission and I think that’s unacceptable.”  

For Tom Casperson, any and every environmental regulation poses an existential threat. Against this ever present danger, he is out to protect what he frequently calls the UP “way of life” and force a David and Goliath standoff with the federal government. “The burdensome regulations proposed by the EPA,” he said when introducing a bill calling for a halt to the regulation of wood-burning stoves, “are an overreach of government and need to be stopped to protect our way of life.” “If we don’t pay attention,” he warned in a recent interview, “we’re going to get run over here.” On that occasion, he wasn’t talking about the danger of ore trucks barreling through downtown Marquette; he was rising to the defense of barbecue grills.

The barbecue resolution Casperson introduced this year with State Senator Phil Pavlov (and which passed the Michigan legislature unanimously) is an unabashed exercise in demagoguery. “Barbecues are an American tradition enjoyed by families from all walks of life across the country,” it begins, “whether tailgating for a football game, hosting a backyard get-together, or just grilling a summer meal, barbecues are a quintessentially American experience and an opportunity to eat and socialize with family and friends.” What prompted this noble defense of American tradition and the quintessentially American experience of barbecue? Of football, get togethers, and families from all walks of life across the country? Nothing much.  

In an EPA-sponsored competition, students at the University of California, Riverside were awarded a grant of $15,000 for proposing “to perform research and develop preventative technology that will reduce fine particulate emissions from residential barbecues.” That’s all there was to it. But those prize-winning students and their particulate emission preventing technology posed enough danger for Casperson — along with Missouri State Senator Eric Schmitt, Richard Hudson of North Carolina, Allen West and others of their ilk — to start hyperventilating about Obama and the EPA “coming after” our backyard barbecues. It looks like a loosely coordinated effort, with all the shills singing from the same sheet.

It’s a common tactic used to stir up popular sentiment against the regulation of polluters: when big pesticide users don’t like a new rule clarifying which waters are protected by the Clean Water Act, the demagogues tell small farmers that even a little ditch on their property will be counted among the “Waters of the US”; when regulators take aim at the fossil-fuel industry, the demagogues make dark predictions about the end of s’mores and campfires.

This is, by the way, the second time the Michigan legislature has fallen for this particular barbecue canard; the last time was back in 1997, when the Michigan House unanimously approved a resolution protecting barbecue grills against over-reaching federal bureaucrats. Casperson’s resolution was a reboot. Back in the 90s, and again in 2014 when Texas Senator Pete Olson demanded the Clean Air Act had to be amended if Texas-style barbecue were to be saved, the phony patriotism around Americans and their barbecue grills was a flag-waving effort to thwart the EPA’s proposal of stricter ozone limits. This time? Maybe rallying the troops around their barbecues helped to galvanize anti-EPA sentiment in the fight against the new Clean Water Act rule, or capitalize on the Pyrrhic victory the Supreme Court handed to industry in Michigan v. EPA.

A watchdog blog notes that Casperson’s “legislative record directly reflects the money trail,” but the equally important point — the one that I want to emphasize here — is that Tom Casperson’s efforts in the Michigan legislature appear to be connected and aligned with other legislative and extra-legislative efforts to ease environmental regulation and advance extractive projects and industrial development. The MCRC complaint presents a sterling opportunity for Casperson to strengthen these connections and forge new alliances. He would be a fool to pass it up.

Clark Hill, the attorneys who prepared and filed the complaint, already support Dan Benishek through their federal PAC; so Casperson may be able to jockey for a position in line behind him. But the law firm also gave more to Michigan Democrats than Republicans, and their real power and political influence does not depend on the nominal contributions they make to various political campaigns. Those are just goodwill gestures. Their political law practice, on the other hand, is a true nexus of political power, and at the head of it sits none other than Charles R. Spies. In 2012, Spies was Chief Financial Officer and Counsel for Restore our Future, the largest super PAC in history, formed to elect the unelectable Mitt Romney. Nowadays, Spies is supporting Jeb Bush, with a new Super PAC called Right to Rise.

These are the big leagues — much bigger than Casperson could ever dream of playing in. But the national success of Right to Rise will depend on thousands of coordinated local and regional efforts. If the MCRC lawsuit continues to go forward, it could easily have a place in that scheme, while raising Casperson’s profile and burnishing his conservative credentials. For its part, Stand U.P. can continue to raise all the money the MCRC needs for its lawsuit and whatever other political projects Tom Casperson and his cronies may be planning, and never have to disclose the sources of those funds. Its 501c4 “public welfare” status affords that protection.

The Political Project of MCRC v. EPA, 2

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Second In A Series
Activists Afoot!

In this Greg Peterson photo from the Cedar Tree Institute site, Northern Great Lakes Synod Lutheran Bishop Thomas A. Skrenes blesses one of the trees faith congregations planted on Earth Day, 2009.

In this Greg Peterson photo from the Cedar Tree Institute site, Northern Great Lakes Synod Lutheran Bishop Thomas A. Skrenes blesses one of the trees faith congregations planted on Earth Day, 2009.

As I suggested in my first post in this series on MCRC v. EPA, the complaint filed by the Marquette County Road Commission would have us believe that “anti-mining” forces worked secretly with and even infiltrated the EPA, and the agency’s objections to CR 595 followed a “predetermined plan.” The EPA, it claims, had decided to oppose the haul road even before the MCRC application was reviewed.

This sounds like legitimate cause for concern: permit applications should be reviewed on their merits, not pre-judged and not according to some other anti- or pro- agenda. We certainly wouldn’t want someone in the Environmental Protection Agency to be “pro-mining”; there are enough well-paid mining lobbyists already haunting the hallways in Lansing and Washington, DC. But in this case, the anti-mining label is being used as a term of opprobrium, and to distort and deliberately misrepresent what the Environmental Protection Agency is chartered and required by law to do: in short, to enforce the Clean Water Act and protect the environment.

When it comes to proving the insinuations it makes, the MCRC complaint offers slim evidence.

For example, the complaint makes a big fuss over a November 28, 2012 letter from Laura Farwell, who lives in the Marquette area and is described here as “a prominent environmental activist.”  The letter is addressed to Lynn Abramson, then a Senior Legislative Assistant for Senator Barbara Boxer, and Thomas Fox, Senior Counsel of the Senate Environmental and Public Works Committee, asking them to “weigh-in” with the EPA on CR 595. (Exhibit 1).

EPA must determine whether to uphold its original objections to proposed County Road 595 under Section 404 of the Clean Water Act (“CWA”), pursuant to its supervisory authority over Michigan’s delegated wetlands permitting program. Tom may remember that during the August 30, 2011 meeting at EPA Denise Keehner of EPA’s office of Wetlands, Oceans and Watersheds definitively reiterated EPA’s position and stated that the haul road would not happen.
Thus, this letter is to request, respectfully, that you weigh-in as soon as possible with the EPA on its decision.

The MCRC complains about Farwell’s use of the word “definitively” here and casts the 2011 meeting in a sinister light:

on August 30, 2011, a very different type of meeting regarding CR 595 took place at USEPA Headquarters in Washington, DC. MCRC was neither invited to nor informed of the meeting. In attendance (as far as is known at the present time) were top USEPA officials, Congressional staff, KBIC representatives, and a prominent environmental activist opposed to the construction of CR 595. It further appears that USEPA made no formal record of the meeting.

Without a formal record, it’s impossible to know what transpired at this meeting, and if the complaint is going to rely on Farwell’s memory of the conversation, then it should also take into account her intentions in paraphrasing and recounting it, one year after it took place. The language here — “a very different type of meeting,” “neither invited nor informed,” “as far as is known at the present time,” “no formal record” — doesn’t help in that regard, and it’s meant to suggest that conjurations were already afoot.

It’s clear the MCRC was not included in some discussions at EPA. There’s nothing extraordinary or illicit about that. All concerned parties had been meeting with and petitioning the EPA for several years at this point. The complaint is still a long way from proving that the EPA “surreptitiously met with a number of environmental activists vocally opposed to the road,” and an even longer way from proving that there was anything like an anti-mining coalition assembled in secret at the offices of the EPA.

In an ironic twist, these allegations of secrecy and whispering behind closed doors may come back to haunt the MCRC: at a Marquette County Board of Commissioners meeting this month, the Marquette County Road Commission itself faced accusations that it had violated the Open Meetings Act in planning to bring its suit against the EPA. Public officials who intentionally violate that act are ordinarily fined and incur other liabilities; in this case, there would be some eating of words as well.

By November 28, 2012, the EPA had, in fact, “decided against the proposed haul road,” as Farwell puts it in the email she sent along with the letter to Abramson and Fox. The EPA had entered objections to the Woodland Road Application (in March, 2010) and announced their objections to CR 595 (in March, 2012).  Even so, a Fall 2012 public meeting held by the EPA “in Marquette…for more input” had Farwell worried. She was not at all confident the EPA would uphold its original objections to the haul road.  The matter was still far from being “definitively” settled.

Whatever reassurances Farwell was given at that 2011 meeting — or thought she had been given, or recalled having been given, one year later — were clearly at risk of getting lost in the bureaucratic shuffle. The purpose of her letter is to prevent that.

There is nothing surprising in all this. Those watching new mining developments in the Upper Peninsula are constantly having to chase after the EPA and demand that the regulator step in and do its job.

Jeffery Loman, a member of the Keweenaw Bay Indian Community and a former federal regulator, has repeatedly put the EPA on notice and complained of the agency’s failure to enforce the Clean Water Act.

In May of this year, the grassroots environmental group Save the Wild UP filed a petition with the EPA’s Environmental Appeals Board, arguing that Eagle Mine was issued the wrong regulatory permit. The appeal requested that the EPA require Eagle Mine to obtain a Clean Water Act permit in order to protect the Salmon Trout River and other surface waters from the discharge of mining effluent. The Appeals Board did not contest the facts put forward in the petition, but dismissed it for lack of jurisdiction. They hardly proved themselves to be staunch allies.

So watchdogs and environmental groups, too, have reason to gripe about the EPA and often feel powerless in the face of bureaucratic inertia and ineptitude. Laura Farwell herself seems to have felt that way, and that’s why we find her asking Abramson and Fox for help. The MCRC complaint exaggerates her influence at the EPA when it describes her as “a prominent environmental activist.” The epithet is used here to create the misleading impression that within the offices of EPA Region 5 and the confines of Marquette County there are political opponents with resources to match the power of multi-billion dollar, multinational mining companies.

Laura Farwell and her husband Frank moved to the area in 2006 from Madison, Wisconsin. They are members of the St. Paul Episcopal Church and participate, along with their son Cody, in the church’s Earth Day tree plantings. The couple donated some money to the UP Land Conservancy. Farwell has also organized events for the Cedar Tree Institute, which works to bridge “faith communities and environmental groups.” (She is described on the Institute’s site  as “a concerned mother and local citizen.”) She is thanked for “working quietly behind the scenes” in a 2011 Earth Keeper TV video on the environmental risks posed by the Eagle Mine; and she’s copied along with many other local citizens in a Google Group post dated April 9, 2012, urging people to comment on CR 595 before the public comment period is closed.

Farwell’s commitments to land conservation are pretty clear, and while the complaint asks us to recoil in horror at the phrase “prominent environmental activist,” cooler heads are just as likely to be impressed by Farwell’s dedication to the people around her and the place where she lives. Maybe that dedication is all it takes to be a prominent environmental activist in the view of the Marquette County Road Commission.

Some locals, on the other hand, are legitimately concerned that nationally and internationally prominent environmentalists — like Bill McKibben, George Monbiot, Naomi Klein and their ilk — ignore the current situation around Lake Superior, or fail to give it the serious attention it deserves. National media have barely taken notice. Farwell herself admits that to the great and powerful in Washington DC “the proposed haul road may seem like some little back trail in the middle of nowhere,” but she urges that it will cut through “critical wetlands resources” and “enable the industrializing of this rural Great Lakes watershed by international mining interests.”

Farwell’s letter tries to create some urgency around the CR 595 issue by putting the road in context and specifying whose interests would be served by the industrializing of the region. A serious assessment of CR 595 would significantly widen the lens, taking into account the cumulative effects of all the new mining activities around Lake Superior: all leasing, exploration, development and active mining throughout northern Michigan, Wisconsin, Minnesota and Ontario. Otherwise, we miss the big picture, and without that perspective, it’s just too easy to parcel out the land, the water, and the future of the region to the highest bidders.

The MCRC complaint, too, places CR 595 in the context of “mining and economic development in the Great Lakes region” in a few places, but only to make the specious argument that those who oppose or question the road are opposed to mining and therefore opposed to the region’s prosperity. These are the ideological leaps the complaint makes. Those who don’t make these leaps are called activists or anti-mining obstructionists. That is a political, not a legal argument.

It’s never too late to have a serious discussion of what sustainable economic development and true prosperity for the Great Lakes region might look like. How might we best organize our lives together in this place? is a fundamental political question. But at this juncture, it appears, the MCRC can’t afford to let that conversation happen. This lawsuit is an attempt to shut it down and stifle dissent. Where business leads, society must obediently follow. To question this order of things, as Laura Farwell seems to have repeatedly done, quietly, behind the scenes, is to commit some kind of nefarious act.

This is where the attitude on display in this complaint gets worrisome. With this lawsuit, the MCRC pretends to have the political authority to direct economic development in the region (not just to build and repair roads). But that is only pretense, and things in Marquette County are not as they appear. The public still does not know who is funding the Road Commission lawsuit, what they stand for and what they expect in return for their support. The real powers lurk behind the scenes.

The Political Project of MCRC v. EPA, 1

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First in a Series

oretrucksAAA

Ore trucks from Lundin Mining’s Eagle Mine make their way down the Triple A road.

No Labels

I’ve just gotten around to reading the complaint filed on July 8th in the U.S. District Court for the Western District of Michigan, Northern Division, by the Marquette County Road Commission against the EPA. The complaint alleges that the EPA’s repeated objections to County Road 595 — that the road will threaten and destroy wetlands, streams and protected wildlife in its way — are “arbitrary and capricious” and in violation of Section 404(J) of the Clean Water Act. The Road Commission asks the court to set aside the EPA’s Final Decision against the building of County Road 595, restore Michigan Department of Environmental Quality’s authority to permit the road, and bar the EPA from further interference in the matter.

While it may take the court some time to decide whether MCRC v. EPA has any legal merit, the complaint is written to serve other ends as well: political objectives. The complaint is aligned with efforts in Michigan, Wisconsin and elsewhere, to ease regulations, subvert the legal authority of the EPA and whip up anger against the federal government; and the plaintiffs appear to be connected, through their attorneys, to one of the most powerful Republican party fundraisers and a network of ultra-wealthy political donors.

The MCRC complaint directs ire against a familiar cadre of enemies — environmental “activists,” overreaching federal bureaucrats and the area’s indigenous community; and it pretends to discover a dark conspiracy, in which these groups meet “surreptitiously,” write “sarcastically” about mining interests, and collude to block economic development. In fact, it’s often hard to decide whether the arguments and evidence assembled in this complaint are meant to serve as legal fodder or support political posturing. So I thought I would try to sort through them in a short series of posts on the CR 595 lawsuit.

There is the tiresome pretense throughout the complaint that CR 595 would serve as something other than a haul route from the Eagle Mine to the Humboldt Mill, and that the road will benefit the public as much as the mining company. While the mining company says it is committed to making do with current infrastructure, the public clearly deserves some relief: trucks hauling ore on a makeshift route from Eagle have already been involved in a few scary accidents, and it remains a question whether cars can safely share the same road, especially an icy winter road, with ore trucks trying to beat the clock. People are understandably concerned, too, about big trucks loaded with sulfide ore barreling through the city of Marquette.

The public has another cause for grievance, and it makes for some angry foot stomping in the complaint: the MCRC spent millions to prepare for EPA reviews of the CR 595 application and failed repeatedly to win approval. Both time and money were wasted, the complaint says, not due to incompetence, stubbornness or denial, but because the EPA was never going to give the Road Commission a fair hearing. It’s in this connection that the complaint tries to lay out an “anti-mining” conspiracy between the EPA and environmental activists and the indigenous community in the Great Lakes Basin, and where the arguments become specious and contorted.

In subsequent posts I’ll address some of the ways MCRC v. EPA constructs this anti-mining strawman in order to mount a political offensive; and throughout this series, I’m going to be asking whether the “anti-mining” label correctly characterizes the evidence brought by the MCRC. I think it’s fair to say from the outset that it does not accurately represent the priorities and commitments of people and groups concerned about the construction of CR 595. It’s reductive, and turns road skeptics into industry opponents. To be against this particular haul road — or hold its planners to the letter of the law — is not necessarily to pit yourself against the entire mining industry.

The anti-mining label deliberately confuses haul-road opposition with opposition to the mining industry in order to coerce people into going along with the haul road or risk losing their livelihood, or at least the jobs and economic prosperity promised when mining projects are pitched. The MCRC complaint goes even further: it conflates mining with economic development — or reduces all economic development in the region to mining — and so runs roughshod over the thoughtful arguments of people like Thomas M. Power, who has studied the ways mining can restrict and quash sustainable economic development.

The anti-mining label fences ordinary people in, distorts and exaggerates their legitimate concerns, and does not recognize that people might come to the CR 595 discussion from all different places. Most don’t arrive as members of some anti-industry coalition; they are fishermen, residents, property owners, teachers, hunters, parents, hikers, snowmobilers, birdwatchers, loggers, parishioners, kayakers, merchants, and so on. Some are many of these things all at once.

The label is fundamentally disrespectful: it refuses to meet people on their own terms and fails to ask what any of the people who oppose CR 595 actually stand for. What do they want for the area? What do they value and love? What do they envision for the future? Where do they have shared interests? Where do they have real differences? How can we work together? The anti-mining label forecloses all those questions. Instead, people are divided. The label demands that everybody take one side or the other (and, as I learned in the course of my work on 1913 Massacre, in the Upper Peninsula that demand has deep historical roots in the labor conflicts of the early twentieth century; but, no worries, in this series of posts I’ll try to stay focused on the present).

I have always had trouble with the idea that “anti-” and “pro-” mining positions should govern the way we talk about the environmental regulation of mining. I myself can easily slip into this way of talking. But as I tried to explain in an exchange on this blog with Dan Blondeau of Eagle Mine, that way of thinking impedes and short-circuits important conversations about the ethics of mining. Playing the anti-mining card reduces the questions of whether and how mining can be done responsibly — in this place, by that company, at this time — to mere pro and contra. It’s a dangerous ruse: instead of identifying risks and addressing responsibilities, it generates social conflict.