Tag Archives: Lake Superior

Another Look at the Twin Metals Timeline

Rees20170502AntofagastaIn response to a FOIA request I made back in April, the Department of the Interior has released Gareth Rees’ 2017 work calendar. Rees has served as Executive Assistant to the Deputy Secretary of the Department of the Interior since George W. Bush’s first term. He did not arrive with the so-called “beachhead” teams brought in by the current administration with the express mission of sabotaging and dismantling the government agencies entrusted to their care. Still, his calendar (which I’ve put up here, on DocumentCloud) adds more pieces to the puzzle.

Rees’ calendar drew my attention to a couple of meetings I hadn’t noticed before and which are now represented on the timeline. There is a June 15, 2017 meeting at Interior with a group called Jobs for Minnesotans — a front for the building trades that is currently lobbying for both the Twin Metals project near the Boundary waters and the Polymet project to the south, near Hoyt Lakes. Jobs for Minnesotans is a 501c4 “social welfare” or dark money organization of the kind I’ve written about in connection with mining projects in Michigan and Wisconsin. As a 2016 Pro Publica report suggests, these organizations are designed for those who prefer backroom deals to sunlight. 501c4s like Jobs for Minnesotans are used to channel money from private interests into public process, and coordinate localized efforts to remove environmental protections and undo regulation through regional and national networks.

A May 2, 2017 meeting with Antofagasta plc has also been added to the timeline. This meeting brought together representatives of the Chilean conglomerate with a large group of officials at the Department of the Interior just one month after Interior appears to have taken up the matter. Apparently meeting with Antofagasta was a priority. The company’s subsidiaries Twin Metals Minnesota and Franconia Minerals had sued the Department of Interior in February of 2017. The complaint makes the mining companies’ position abundantly clear. And yet administration officials seem to have been anxious to sit down with the Chilean parent company and discuss its leases. Why? (It’s not likely that the same courtesy will be extended to the ten Minnesota plaintiffs now complaining that in reinstating Antofagasta’s leases the Department of Interior exceeded its lawful authority and acted in an arbitrary and capricious way.)

The first meeting with Antofagasta, in early May, appears to have set the agenda; the second meeting with Antofagasta, on July 25th, looks as if it were called to reach an agreement. The July meeting with Antofagasta includes all Interior officials present at the May 2nd meeting as well as some important decision makers: Deputy Solicitor Daniel Jorjani, Acting Director of the Bureau of Land Management Michael Nedd, and Edward Passarelli, Deputy Chief at the Natural Resources Section of the Department of Justice.

It is difficult to avoid the conclusion that the Department of Interior worked steadily and closely behind closed doors with lobbyists and mining executives to renew Antofagasta’s mineral leases in Superior National Forest. This would conform to the general pattern at Interior under Zinke’s leadership. “A deeply problematic culture of secrecy…has taken root in the Department of the Interior,” the organization Earthjustice charges, “keeping the American public in the dark about major decisions, important records, and meetings with industry that affect the lands and resources the agency holds in trust for the American people.”

In this case, the mining company ran a full court press; the public was kept almost entirely out of the process. The deed appears to have been done well before the end of summer 2017. The legal review that would result in the Jorjani Memo of December 22nd appears to have been nothing more than an exercise in a foregone conclusion — a sham.

Demagoguery in Duluth

Earlier this week, in Duluth, Minnesota, Donald Trump stated that the reversal of Obama-era protections for the Boundary Waters promised great things “for our amazing people and miners and workers and for the people of Minnesota.”  Bizarrely, the president went so far as to claim that mining the Duluth Complex would “make it from an environmental standpoint better,” though it’s impossible to say what exactly “it” might refer to here.

He framed these remarks as an announcement, but it’s also difficult to say what, exactly, he was so “proudly announcing.” Those like Daniel Dale who track the president’s speeches have noticed that he tends to present as new and exciting events and initiatives that are long past, or which in fact have failed or run into trouble. This is especially true when it comes to the president’s statements about blue collar jobs, factories, and the economy.

The timeline clearly shows that the Department of Interior started taking meetings with lobbyists and representatives of Antofagasta Plc and Twin Metals in April of 2017, worked closely and steadily with them through the summer and fall, and issued a legal memo favorable to the mining companies in December of that year. Secretary Zinke’s latest action — the reinstatement of Antofagasta’s mining leases in Superior National Forest on May 2, 2018 — was over a year in the making. Almost all of this work was done behind the scenes, without meaningful public participation. Announcements would only have drawn unwelcome attention.

In Duluth, the announcement of “first steps” that were in fact already taken might have been made to pre-empt or drown out the real news of this week: the filing of a Complaint in the US District Court for the District of Columbia by a group of ten Minnesota plaintiffs against the Department of Interior, the Bureau of Land Management, Secretary Ryan Zinke, and BLM’s Brian Steed.  The Complaint charges that the reinstatement of Antofagasta Plc’s mining leases in Superior National Forest “exceeds their authority under law and is arbitrary and capricious” and asks the Court “to enjoin them from further consideration of applications to renew the two leases.”

Filed yesterday, just hours after Trump’s Duluth rally, this Complaint is actual news. It will not get one tenth of the coverage Trump’s bluster receives.

There’s little if anything that’s new and even less of substance here. I include the video because it’s helpful to consider where Trump is clearly reading from prepared remarks (which might indicate some actual administrative policy step) and where he is simply wandering off on his own into vague promises of some “better” future. He did the latter for most of the minute he spent on the subject of Superior National Forest, veering off, at the end, into incoherence.

Here is my transcript of his remarks on the topic:

Under the previous administration, America’s rich natural resources, of which your state has a lot, were put under lock and key, including thousands of acres in Superior National Forest. You know what that is, right? Tonight I’m proudly announcing that we will soon be taking the first steps to rescind the federal withdrawal in Superior National Forest and restore mineral exploration for our amazing people and miners and workers and for the people of Minnesota, one of the great natural reserves of the world. And we’ll do it carefully, and maybe, if it doesn’t pass muster, we won’t do it at all, but it is going to happen I will tell you that. It’s gonna happen. And it’s happening fast. We’ve already taken it as you know a long way down the road. And it’s gonna make things better. It’s gonna make it from an environmental standpoint better. 

Here, as far as I can tell, is the substance of his prepared remarks.

Under the previous administration, America’s rich natural resources were put under lock and key, including thousands of acres in Superior National Forest. We [have taken] the first steps to rescind the federal withdrawal in Superior National Forest and restore mineral exploration [in] one of the great natural reserves of the world. 

The opening jab at Obama, who locked away riches that are rightfully ours, also makes a mockery of the very idea of conservation and environmental protection. But who’s really paying attention? The audience cheers at the mention of Superior National Forest: “you know what that is, right?” Trump clearly does not, but he tries to milk the cheer anyway; it’s a variation on the tired old comedian’s schtick: who here is from Jersey? Anybody? New Jersey!

Superior National Forest is seen here entirely through the lens of extractive industry: a “natural reserve,” a store of minerals. Just as importantly, the statement makes no mention of the risky mining that this will involve — sulfide mining, a kind of mining the amazing people of the Iron Range have never done before, and which has the potential to destroy the very things people in Minnesota prize about Superior National Forest and the nearby Boundary Waters area.

Marshall Helmberger sums it up in a must read article on the new Complaint in The Timberjay :

Former Forest Service Chief Tom Tidwell, in December 2016, issued detailed findings of fact concluding it was likely that acid mine drainage from the Twin Metals mine would contaminate the BWCAW and cause adverse effects on the water quality, fish populations, aquatic ecosystems, and animal species. Tidwell further considered the possibility of containment, mitigation and remediation efforts and found that very few would be compatible with maintaining the BWCAW’s wilderness character.

While it appears that the president’s prepared remarks also included some vague gesture toward environmental responsibility, Trump turns that bit into a meaningless jumble, saying at first that the mineral exploration of the Duluth Complex will only go forward if it passes muster, then assuring the audience that “it is going to happen…It’s gonna happen,” and when it does happen, “it” is going to make “it” better. “It” here can mean anything, or nothing at all: he’s not offering the crowd anything beyond the word “better,” which is pretty much all they came out to hear anyway.

From Caval to Kalorama

Kalorama

The Washington, D.C. mansion rented by Jared Kushner and Ivanka Trump.

We know this much. In December of 2016, just after the election, Chilean billionaire Andronico Luksic Craig bought the Kalorama Triangle mansion that Jared Kushner and Ivanka Trump now rent in Washington, D.C.. Just about six months later, records show, the Department of Interior began drafting the December 22nd, 2017 memo that would reverse Obama-era protections for the Boundary Waters and renew the lease of lands in Superior National Forest held by Twin Metals, a wholly owned subsidiary of Antofagasta Plc, the mining conglomerate controlled by the Luksic family. Headlines have hinted at corrupt dealings, as I’ve noted in previous posts, but no hard evidence has come to light.

Maybe it’s all just a happy coincidence of the kind that frequently befalls the world of billionaires, mansions, and yachts. In any case, Andronico Luksic Craig, Jared and Ivanka’s landlord, is clearly a master of such coincidences. Journalist Horacio Brum dubs him “el gran titiritero de Chile,” the great puppetmaster of Chile. He is “a man who does not need to do politics,” writes Brum, “because he makes politicians.” The role Andronico Luksic Craig played in the scandal known in Chile as “el Caso Caval” — The Caval Affair — is illustrative.

The Caval Affair involved a $10 million loan for a shady real estate scheme undertaken in late 2013 by Natalia Compagnon, the daughter-in-law of Chile’s president, Michelle Bachelet, and 50 percent owner of a company called Sociedad Exportadora y de Gestión Caval Limitada. El Caso Caval was a drawn out and complicated affair, and charges of corruption and influence peddling would dog Compagnon and the Bachelet family for years. Just one feature of the scandal needs to concern us at the moment, and that’s the timing of the loan itself.

In the months immediately preceding Bachelet’s election, Compagnon had been trying to secure a line of credit for her company to purchase three plots of land in Machalí, in the O’Higgins Region in central Chile. Compagnon and her husband, Sebastian Davalos Michelet, met with the Vice President of Banco de Chile to discuss the project on November 6th, 2013. This was about ten days before the elections, which were scheduled for November 17th. The loan was approved on December 16th, 2013, just a month after Michelle Bachelet was elected to the presidency. The Vice President of the Banco de Chile who made these timely financial arrangements for the daughter-in-law of the new president elect was none other than Andronico Luksic Craig.

This time-lapse illustration produced for the news organization 24 Horas lays out the whole scandal in less than three minutes. Even if your Spanish is rusty, you can follow the story. Luksic first appears around 1:26.

The pattern looks familiar. When questioned about the loan, Luksic Craig at first denied meeting the young couple more than once. (This is classic Luksic, who claims never to have met his first family tenants, and only to have said hello to Trump himself once, at a Patriots’ football game in 2012.) Only later did he admit to various meetings and contacts between him and Compagnon, including one the day after Bachelet won the election. As the scandal grew, Andronico Luksic Craig managed to retreat back into the shadows and to keep himself and the Luksic family out of the headlines.

So far, the almost daily revelations of Jared Kushner’s far-flung attempts to bail out his family’s foundering real estate empire have not turned up anything that connects Kushner’s business troubles to Chile’s Grupo Luksic or the Luksic family. But it would not be terribly surprising to learn that there is more to the Kushner story and that Kalorama mansion than Luksic Craig claims. The president’s son-in-law is a quo looking for a quid, and when it comes to making that sort of delicate arrangement, Andronico Luksic Craig appears to be a real pro.

Mozambique, Michigan, and the SEC Complaint Against Rio Tinto

Chinde_Rusting_boats

Rusting boats at the port of Chinde, where Rio Tinto proposed to barge Riversdale coal via the Zambezi River.

Yesterday, the Securities and Exchange Commission brought a complaint in New York City against Rio Tinto, charging Tom Albanese, the former CEO of Rio Tinto, and Guy Elliott, his Chief Financial Officer, with fraud. According to the complaint, Albanese and Elliott actively misled the Rio Tinto board, audit committee, auditors, and the investing public about their acquisition of the Riversdale coal business in Mozambique in 2011.

The fraud that Albanese and Elliott are accused of perpetrating looks awfully familiar to those who have followed the development of Eagle Mine and the controversy over County Road 595. Having noticed the parallel between Mozambique and Michigan back in 2013, when Tom Albanese was forced to step down, I now have to wonder whether prosecutors will take the company’s representations around the Eagle Mine into account when building their case.

In Mozambique, they told investors, coal would be transported by barge to the Indian Ocean port of Chinde. Although their technical advisors “highlighted the ‘showstopping’ risks” associated with the barging proposals before the acquisition, Albanese and Elliott blundered recklessly ahead. Then eight months later, the Mozambique government denied Rio Tinto a permit to transport the coal by barge down the Zambezi River. Suddenly, the coal business they had acquired for $3.7 billion appeared to be worth a negative $680 million. According to the SEC’s complaint, Albanese and Elliott “concealed and glossed over” the fact that they had no viable haul route for the 30 million tons per year they projected in their business plans, and misled investors as they raised $5.5 billion in US debt offerings.

In that very same period, Rio Tinto was also promoting Eagle Mine to investors and promising economic renewal in the Upper Peninsula, though they had not yet secured a transportation route — a haul route — for Eagle’s sulfide ore. In Michigan, it appears, the company took the same cavalier attitude toward planning and risk that the SEC complaint says got them into trouble in Mozambique.

Way back in 2005, John Cherry, who was then a Kennecott Minerals project manager and is now President and CEO of the Polymet project in Minnesota, characterized Eagle as a “direct ship” operation, “meaning that the rock would not be processed on site, thereby avoiding the storage of highly toxic debris left over, called tailings.” Presumably this is what Michigan DEQ’s Robert McCann had in mind in 2007, when he told The Blade that Kennecott’s permit “would require them to keep the ores underground, put them in covered rail cars, and ship them to Ontario for processing”; the Marquette Monthly told roughly the same story that year, only now there were trucks in the picture: “ore would be transported by truck and rail to a processing site in Ontario.” This seems to have been nothing more than a cover story.

Everything changed in 2008, when Rio Tinto bought the Humboldt Mill. Those permit requirements the DEQ’s McCann touted back in 2005? They were quickly abandoned. Covered rail cars come into the picture only after the ore is crushed, ground into a slurry, floated and rendered into concentrate at Humboldt Mill. A glossy 2010 company publication promoting Eagle Mine includes not a single word about how Rio Tinto and Kennecott plan to travel the 30 kilometers from mine to mill: “Happily, processing of the nickel and copper can take place in Humboldt, around 30 kilometres [sic] away, at a previously abandoned iron ore plant.” By 2011, the company had “considered more than a half dozen transportation routes” from mine to mill, according to a Marquette Mining Journal article by John Pepin published in February of that year, but they still had no viable haul route.

A good prosecutor with a rigorous and thorough discovery process would probably be able to determine whether the evasions and misrepresentations perpetuated on the public over the Eagle Mine haul route also amounted to fraud, or were part of a larger pattern of deliberately misleading statements. It’s clear Rio Tinto never came clean — and perhaps never really had a firm plan — on mine to mill transport at Eagle before it sold the works to Lundin Mining in June of 2013 and decamped. As long as regulators in Michigan continued to be more accommodating than those in Mozambique, the company seems to have been content to let the people of Marquette County fight out the haul route issue among themselves.

A Highland Map of Lake Superior Mining

It would be instructive to lay this map, published today by Highland Copper, over the map of Mines, Mineral Exploration, and Mineral Leasing around Lake Superior published in 2013 by the Great Lakes Indian Fish and Wildlife Commission.

Having acquired all of Rio Tinto’s exploration properties in Michigan’s Upper Peninsula, Highland now dominates sulfide-mining exploration in the UP.

A multi-billion dollar mining behemoth like Rio Tinto could arguably have left these copper, zinc and gold sites idle for a rainy day. The same can’t be said about a junior like Highland. With market capitalization of $62 million, the company paid $2 million at closing, leaving its subsidiary on the hook for an additional $16 million (in the form of a non-interest bearing promissory note), to be paid in regular installments.

According to company’s own press release, “the payments…will be accelerated if Highland publicly releases a feasibility study covering any portion of the UPX properties.” So once exploration begins with test drilling in 2018, we might see efforts to expedite permitting and development for these sites.

If UPX succeeds in taking even a fraction of these sulfide-mineral deposits from exploration to development, and if these new mines are developed under the pressure of an accelerated payment schedule, the risk to the Lake Superior watershed will be significantly heightened.

Will Pruitt Retreat From the Yellow Dog Plains?

It’s no coincidence that the Marquette County Road Commission announced that it would renew the battle for County Road 595 just as the U.S. Senate geared up to confirm Oklahoma Attorney General Scott Pruitt as head of the EPA.

CR 595 seemed like a lost cause after Judge Robert Holmes Bell denied a motion to alter or amend his dismissal of MCRC v. EPA back in December. (I wrote about that motion here). But if the election of Trump and his nomination of Pruitt can change the outlook for big mining projects like the Pebble Mine in Alaska, it can certainly help the MCRC build a haul road for Lundin Mining through the Yellow Dog wilderness.

A federal mediator is now scheduled to hear from both sides on March 9th. The appeal will go forward in the event the parties cannot agree.

The Pacific Legal Foundation — which now represents the MCRC — is clearly well equipped to appeal Bell’s decision. The libertarian-leaning PLF are even more likely than their Clark Hill predecessors to grandstand about federal overreach and economic self-determination. As I’ve tried to suggest in other posts (e.g., here or here), that’s cynical posturing: in this case a victory for the Road Commission will amount to ceding economic development authority to a Canadian mining company and its local proxies.

But libertarian huffing and puffing will not be what makes the Pacific Legal Foundation especially formidable. The PLF argued, and won, the Hawkes decision — which, as I explained in previous post, allowed the plaintiffs to challenge a ruling that wetlands on their property were subject to the Clean Water Act — and they regard Judge Bell’s rejection of the Hawkes decision in the CR 595 case as “a legally reversible error.” Indeed, the PLF are already advertising the Marquette County Road Commission’s case on their blog as “Hawkes Come to Michigan.”

And after today’s confirmation of Pruitt, the PLF will likely have have a much less formidable opponent in the EPA. The decision to go forward with this appeal clearly took that into account. Hawkes may not need to come to Michigan at all. Pruitt might just order the EPA to retreat.

Update, 24 August 2017: New briefs recently filed with the Sixth Circuit Court of Appeals show the Road Commission asking to present oral arguments in this case.

The case turns on three points: whether EPA objections constitute “final agency action” and are therefore subject to judicial review (a claim I explored here); failing that first condition, judicial review might be warranted under Leedom v. Kyne (which provides an exception to the final agency action rule when an agency’s conduct is “a readily-observable usurpation of power,” but the court has already ruled that the Leedom exception does not apply in this case); failing on those scores, the Road Commission wants to invoke a “futility exception” in order to bring the case under judicial review: the Army Corps of Engineers, they say, had already decided against County Road 595, and there was no point in returning to the permit process. But as the EPA notes in its 8 August response, this is speculative on the part of the Road Commission.

The larger issue here — which helps put the MCRC case in context — is that this ongoing litigation concerns a provision of the Clean Water Act, Section 404, which covers permits issued to discharge dredged or fill materials into the waters of the United States. Since stepping into his role at EPA, Scott Pruitt has been leading the charge to rescind the Obama-era definition those waters, revert to an earlier (pre-2015) definition, and make enforcement of the Clean Water Act more favorable to industries like mining.  If MCRC v. EPA continues to make its way through the courts, the case could easily become caught up in the toxic politics of Pruitt’s tenure at EPA.

Update, 17 October 2017: Oral argument is now scheduled for Tuesday, 5 December, before a three-judge panel of the Sixth Circuit Court of Appeals. In a 15 October Detroit News op-ed, Pacific Legal Foundation attorney Mark Miller argues EPA should “immediately” retreat, to deliver on Trump’s campaign promises and “send a signal to the EPA bureaucrats.” It would appear that the Marquette County Road Commission is being enlisted in what a recent episode of Frontline calls the “War on the EPA” and the larger political project to dismantle the administrative state.

Some remarks on “another kind of power”

A new post about the merger of two Upper Peninsula environmental organizations on Keweenaw Now includes this short video excerpt of the talk I gave in Marquette, Michigan a while back about the power and responsibility we have to protect water and wild places from unsustainable development.

You can read the full text of my remarks here.

The Political Project Continues, Even if the Case is Dismissed

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

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.

A Postscript on the Political Project of MCRC v. EPA

A ProPublica investigation of dark money organizations lends context and additional color to some of what I had to say a a short while ago about the Marquette County Road Commission’s lawsuit against the EPA.

Sponsored by State Senator Tom Casperson, the Republican representing Michigan’s 38th district, the MCRC lawsuit is being funded by a non-profit organization called Stand UP. Stand UP is exactly the kind of dark money organization profiled by ProPublica: it’s a special kind of non-profit, a 501c4 “social welfare” organization that is not required by law to disclose the names of donors. It does not have to confine its fundraising and expenditures to the MCRC lawsuit or any other specific purpose. It is a trough of dark money that can serve any number of political efforts.

So, as I tried to suggest in a series of posts on the MCRC complaint (here, here, here and here), while the lawsuit is nominally over a haul road that will serve both mining and timber companies, it also appears to be part of a larger, coordinated effort to sideline federal regulators, stifle local environmental watchdogs, and arrogate the authority and power to direct economic development in the Upper Peninsula to a set of undisclosed actors and moneyed interests.

Now, as Robert Faturechi reports, with efforts in 38 states to make non-profit organizations like Stand UP more accountable and transparent gaining ground, powerful conservative groups are “coaching” allies on how to fight back against any new legislation requiring the disclosure of dark money sources. The tactics they recommend should sound familiar:

Get the debate to focus on an “average Joe,” not a wealthy person. Find examples of “inconsequential donation amounts.” Point out that naming donors would be a threat to “innocents,” including their children, families and co-workers.
And never call it dark money. “Private giving” sounds better.

They urge dark money groups to claim the victim’s mantle and to see conservatives as “a persecuted class,” according to one January 2016 memo Faturechi uncovered. It’s “all part of a plan to choke off our air supply of funding,” they warn.

The documents presented by Faturechi were distributed at a conference held in Grand Rapids by The State Policy Network. The Network “calls pro-regulation activists ‘enemies of debate,’” and generally takes the line that regulation quashes freedom and criminalizes belief — a refrain often heard from climate change denialists — and that transparency will only threaten privacy.

The State Policy Network brings together conservative and tea-party organizations from around the country dedicated to “advancing freedom and making a difference,” so it’s well positioned to coordinate local efforts like the MCRC lawsuit against the EPA with other state, regional and national causes. In Michigan, the Network’s member organization is the Mackinac Center for Public Policy. Just last week, they ran a widely shared update (303 “likes” and counting) on the MCRC lawsuit in which Casperson crows about the progress they’ve made in the discovery phase of the suit and wails about prejudicial treatment at the EPA.