Tag Archives: environmental politics

The Supreme Court is going to do what, exactly? Another update on MCRC v. EPA

It turns out Marquette County Road Commission v. EPA, the mining haul route case I’ve followed for a few years, is not dead yet. Back in June, the Sixth Circuit denied a petition for an en banc hearing. That seemed the end of it. Now, a TV6 report says that the Pacific Legal Foundation’s Mark Miller is talking — once again — about Supreme Court review.

A Petition for a Writ of Certiorari was filed on October 25th. A response is due on November 28th.*

Maybe Miller knows something about the composition of the court post-Kavanaugh I don’t. The Sixth Circuit firmly rejected his argument — that the EPA’s objections to the Marquette County Road Commission’s plan for County Road 595 were tantamount to a “veto.” Now, he believes

the U.S. Supreme Court will read our petition, review our case on the merits, ultimately, and agree with us that the road commission’s plan as approved by the state should at least be considered by a judge as compared to the EPAs decision to reject that plan.

If I follow what Miller’s saying here, the Supreme Court is going to review a case that was denied an en banc hearing at the Sixth Circuit, and then recommend that a judge — what judge? an administrative law judge? in what court?  — consider the Road Commission’s plan and weigh it against the objections of the EPA. I think I got that right.

Jim Iwanicki, Marquette County Road Commissioner, has another set of expectations:

the purpose of the lawsuit is to have the U.S. Supreme Court review the decision of the Michigan Appeals Court to side with the EPA and to get an explanation as to why the the EPA turned down the permit in the first place….Iwanicki says he wants answers on the EPA’s decision. He says the road commission was not given a solid answer on why the EPA ruled against the road’s construction.

The construction of 595 would have gone through undeveloped wetlands.

“There is no mechanism right now to build 595,” said Iwanicki. “Right now it is more of the issue of, were we treated fairly and was the permit looked at properly. If not then those people that didn’t look at it properly should be addressed and called forward on the carpet.”

I wonder if these are actual expectations, or if Miller and Iwaniki — and StandU.P., the dark money 501c4 behind the push for CR 595 — are rabble rousing.

*Update: on November 21st, Solicitor General Noel Francisco requested, and the Supreme Court granted, an extension to December 28th to file a response. The reason given: “the heavy press of earlier assigned cases to the attorneys handling this matter.”

Second Update, 4 December: Two amicus curiae briefs were filed on November 28th in support of the Marquette County Road Commission by the Southeastern Legal Foundation and the Mackinac Center for Public Policy and the County Road Association of Michigan and Stand U.P., the 501c4 dark money organization promoting CR595. Both briefs take their cue from the argument that failed in the Sixth Circuit, asserting that the question before the court involves an “arbitrary and capricious EPA veto.”

MCRC v. EPA at the Sixth Circuit

mcrc_map1s

“Well, if you took all these papers,” said EPA counsel Ellen J. Durkee, referring to the various proposals put forward for CR 595, “what you’d have is their proposal in June, their proposal in July, their proposal in October, their proposal in November, their proposal in, you know, different — twice in December…. really what’s needed is they have to say…what is the proposal that they consider their application at this point.” A good review of the various proposals for the Eagle Mine haul route can be found here.

In remarks before the Sixth Circuit Court of Appeals on Wednesday, Mark Miller of the Pacific Legal Foundation waved the flag of “cooperative federalism,” complained that the Environmental Protection Agency has “gone way beyond the powers that Congress gave them,” and even, at one point, raised the familiar spectre of an anti-mining conspiracy at the EPA and the Army Corps of Engineers.

They did not want a permit here from before. In the pre-application process, there was a meeting, among the parties — not among Marquette County Road Commission, they were not invited — but the government said we are not going to approve this road project. This was a well-known proposed road project from a mine to a mill, and the EPA and the Corps wanted none of it. So that’s why it was futile factually.

Miller has elaborated on these arguments in the Wall Street Journal and elsewhere. As I have suggested in previous posts on Marquette County Road Commission v. EPA, grandstanding arguments like these are intended to raise the profile of this dispute and make it about much more than a haul road. They have been used, repeatedly, to connect the Road Commission’s case with a larger, coordinated effort — a right-wing, dark-money political project — to sideline federal regulators in Michigan and weaken enforcement of the Clean Water Act; stifle local environmental watchdogs; and arrogate the authority and power to direct economic development in the Upper Peninsula to a set of undisclosed actors.

But on Tuesday, those arguments didn’t count for much in Miller’s presentation before the Sixth Circuit panel. At the center of the dispute is still the question whether EPA’s objections to CR 595 constitute “final agency action,” as the Road Commission claims, or if they are an “interlocutory step” (in which case, the Road Commission can still take the EPA’s objections under advisement and go back to the Corps with a proposal).

Miller claimed right off the bat, in the very first sentence of his argument, that EPA’s objections were tantamount to a “veto.” I’ve written about this argument before. On Tuesday, the judges wanted to know what exactly Miller meant by that word. “You keep saying the EPA vetoed the application for the permit,” asked one of the judges just four minutes into the proceedings. “What do you mean by that?” Ten minutes later, another Judge indicated she was still not satisfied on this point:

JUDGE: What makes it — you keep using the word veto.
MILLER: Yes, your honor.
JUDGE: But it was really objections, right?
MILLER: Your honor I think that’s a distinction without a difference because effectively here the EPA has twice said, “no, DEQ, this permit you’re ready to issue is not good enough for us.” And the reasons the EPA was giving were not within its powers to give. Then the EPA knew it was taking advantage of the statute to say well now it’s going to bounce to the Corps.

That there is no “difference” between objections and vetoes is critical to Miller’s argument for futility, which claims it would be a “farce” for the Road Commission to go back to the Corps.

When it came to her turn, Ellen Durkee, arguing for the EPA and the Army Corps, pursued the point:

I’d like to speak to this issue of this continued use of the word “veto,” because I think that that is, seems to be the critical characterization for the plaintiff’s argument here. A veto means that you cannot get a permit. In [Section] 404 [of the Clean Water Act] itself, there’s a distinction between what happens in 404j with EPA objections and a true veto, and you know they — in this case, the EPA objection gives the state opportunity to take action. And then when the state, as it did here — there’s an impasse, because they didn’t take action within the statutory time, it simply shifts the permitting authority. That is not a veto. The Corps may look at this and say we think it’s satisfactory. EPA, you know, they may come up with the provisions that they need to satisfy that, the objections, in which case they could still get a permit. What [the Road Commission] simply did was stop the process and decide not to continue.

And the word “veto” was still begging questions at the end of the proceeding, when Judge Helene N. White went back to Miller.

JUDGE; Let me just ask you this question. Once the EPA made its objections, the DEQ still had three options, correct?
MILLER: Yes your honor.
JUDGE: And they were grant, deny, or do nothing.
MILLER: In this case the DEQ threw its hands up because they could never — if they granted the permit, the landowner would have nowhere to go because the EPA made it clear it was not going to sign off on it. So they deny it and then transfer– they threw their hands up because the reasons the EPA gave were improper under the statute.
[Crosstalk.]
MILLER: Yes, your honor.
JUDGE: Ok. Did they have three options? Grant, deny, or do nothing?
MILLER: Your honor, they had the options, but ultimately once the EPA gives arbitrary and capricious objections they really had no choice.
JUDGE: But they could have said, they could have denied the permit, right? They could have said we are honoring the objections and we deny the permit.
MILLER: Right and they didn’t, your honor, respectfully they didn’t.

You can listen to the whole proceeding here, or read my (imperfect) transcript of the proceeding.

A Compass for the Twenty-First Century

“In the technocratic version of environmental politics,” writes Ulrich Beck in a critical passage of The Metamorphosis of the World, “carbon emissions become the measure of all things.” But for Beck this is inadequate. “Climate change risk is far more than a problem of measures of carbon dioxide and production of pollution”:

Nor does it signal only a crisis of human self understanding. More than that, global climate risk signals new ways of being, looking, hearing and acting in the world — highly ambivalent, open-ended, without any foreseeable outcome.

…the past is reproblematized through the imagination of a threatening future. Norms and imperatives that guided decisions in the past are re-evaluated through the imagination of a threatening future. From that follow alternative ideas for capitalism, law, consumerism, science…etc.

Alternative ideas, or at least a new set of expectations and beliefs. Global climate risk

creates the expectation (sometimes even the conviction) that a reformation of institutions (law, politics, economy, technological practices, consumption and lifestyles) is now urgent, morally imperative and politically possible, even if it fails at conferences and in politics.

“The global risk of climate change”, he concludes, provides a “compass for the twenty-first century. Yet…it is an open question where this compass leads us. There is an enormous discrepancy between normative expectations and political action.”

The enormous discrepancy between expectation and action also describes an enormous field of political possibility. This is where our responsibility comes into play.

The Political Project of MCRC v. EPA, 2

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

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.