Tag Archives: Marquette County Road Commission v. EPA

Cert Denied in MCRC v. EPA

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Certdenied4March2019

18-555 among the denied petitions on this morning’s list of Supreme Court orders.

A public agency’s effort to cut a road through the Michigan wilderness for a Canadian mining company has suffered yet another legal setback.

This morning, the Supreme Court published the list of orders from its March 1 conference. The court has denied the petition for certiorari in Marquette County Road Commission v. EPA, the dispute over County Road 595 I’ve been following since 2015. This denial means, simply, that the Supreme Court declines to review the case, without further comment, and the decision by the Sixth Circuit Court of Appeals stands.

The Road Commission’s case turned on the question whether objections by the EPA to the proposal for CR 595 constituted “final agency action.” If so, they would be reviewable by a court. In arguments before the Sixth Circuit, the Pacific Legal Foundation’s Mark Miller insisted that EPA’s objections to the Road Commission’s proposal were tantamount to a “veto,” but his repeated use of that word ended up confusing the judges, and their questions about it exposed the weakness of his argument.. The Road Commission, they reminded him, could always have simply gone back to the Army Corps of Engineers with an amended proposal that took the EPA’s objections into account.

As I’ve written elsewhere, Miller made a lot of other arguments before the Sixth Circuit (and the in pages of the Wall Street Journal) that suggest this case was about more than building a haul road from Eagle Mine to Humboldt Mill. Like others advocating for CR 595, he tried to suggest that the Environmental Protection Agency was in cahoots with environmental groups, and part of an anti-mining conspiracy. These arguments were never intended to go anywhere legally. They were, instead, put forward to raise the profile of the dispute over Country Road 595. They brought in dark money and support from outside groups. They divided people. They helped advance a larger political project.

After a long and fruitless detour through the court system, the Road Commission has come to a legal dead end. But the Road Commission and its allies, within and without Marquette County, still have options. Lundin Mining’s development of Eagle East has extended the life of the mine to 2023 — “at least,” the company says. There is nothing to prevent the Road Commission from revising its proposal, and trying again. The question remains whether doing so would serve the broad public interest, or simply advance the short-term interests of the mining company.

Read other posts about MCRC v. EPA here. 

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

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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 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.”

Update, 19 December. The Department of Justice has requested a second extension, until January 28, 2019, to file a response. The reason given is, again, “because the attorneys with principal responsibility for preparation of the government’s response have been heavily engaged with the press of previously assigned matters with proximate due dates.” The request goes on to note that counsel for the Marquette County Road Commission does not oppose a second extension. So we can’t expect anything like a resolution in this case until the New Year.

Update, 28 January 2019. The Environmental Protection Agency responded today to the Road Commission’s petition for Supreme Court review.  As expected, the reply focuses on the fact the Road Commission “voluntarily discontinued the permitting process” back in 2015, then turned around and brought suit, saying the EPA had acted in an arbitrary and capricious way.

The EPA replies that this is a mess of the Road Commission’s own making.

To be sure, EPA’s objections may have had the practical effect of making the overall Section 404 permitting process (if petitioner had continued to pursue it) more protracted than it otherwise would have been…. At most, however, EPA’s objections required petitioner to continue with a permitting process that petitioner was obligated to invoke regardless of EPA’s objections—a requirement “different in kind and legal effect from the burdens attending what heretofore has been considered to be final agency action.”

The Road Commission has repeatedly failed to convince the lower courts of its central contention, that EPA objections amounted to a veto.  Instead, when the Michigan Department of Environmental Quality declined in July of 2015 to grant or deny the Road Commission’s application, permitting authority for CR 595 transferred to the Army Corps of Engineers. The Road Commission could have simply continued the permitting process.  Why didn’t they? Instead, they’ve ended up here, at the door of the Supreme Court, looking for relief from — what, exactly? their own impatience?

Update, 11 February 2019. Attorneys for the Marquette County Road Commission have filed a Reply Brief. In a more sophisticated version of the veto argument rejected by the Sixth Circuit, they accuse the EPA of playing “a semantic shell game” around the issue of final agency action. They still use the word “veto” throughout the brief, and argue that EPA has made an important concession in its 28 January filing:

they now concede one crucial point that below they denied: the Corps required the Road Commission to submit a new Section 404 CWA permit application after the EPA vetoed the permit the State of Michigan stood ready to issue. [Here they cite a sentence from the EPA brief, which states:] “the Corps asked petitioner to submit a ‘new’ application.” That factual concession amounts to an implicit legal concession that, in regards to the State of Michigan Department of Environmental Quality (MDEQ) Section 404 CWA permit application process, the EPA’s work was consummated… Moreover, it recognizes that there were consequences to the Road Commission that flowed from that consummation of EPA’s work in regards to that vetoed state permit: now, the Road Commission had to take action in order to obtain a Section 404 CWA permit—it had to submit a new permit application to the Corps.

Who, exactly, is playing shell games? This argument appears to be little more than sophistry. When the EPA brief uses the word “new” at the indicated place (page 11), the brief is quoting the Marquette County Road Commission’s own petition. That is why the EPA places “new” inside quotation marks. EPA is, moreover, quoting Marquette County Road Commission in order to refute the assertion that this was anything but the continuation of an ongoing review process. To quote your opponent is not to concede his point.

The Reply Brief also cites the recent Weyerhaeuser decision over enforcement of the Endangered Species Act to argue that there is “a basic presumption of judicial review for any party suffering legal wrong because of agency action.” This would seem to create the burden of proving that the Road Commission suffered legal wrong — which would seem to bring us full circle: the Road Commission only suffered legal wrong if, in fact, the EPA’s objections constituted a veto.

Round and round we go. Now it’s up to the Roberts court to sort this out, or just turn it down. I still think the latter is the most likely outcome.

Update, 19 February 2019. A 13 February entry in the docket shows the case has been distributed for conference on the first of March. It is one of ten Sixth Circuit cases up for consideration.

You’ll find my other posts on MCRC v. EPA here. 

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.

Mozambique, Michigan, and the SEC Complaint Against Rio Tinto

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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.

Will Pruitt Retreat From the Yellow Dog Plains?

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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.

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.

A Postscript on the Political Project of MCRC v. EPA

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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.

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, 3

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Third in a Series

Wisconsin Governor Scott Walker, pushing jobs.

Wisconsin Governor Scott Walker, pushing jobs.

Sunlight and Skullduggery

When it comes to parceling out the land, water and future of the Lake Superior region to the highest bidders, few have matched the auctionary zeal demonstrated a couple of years ago by David Dill, a member of Minnesota’s House of Representatives. In the debate over the proposed Boundary Waters Land Exchange, Dill was among those urging that the state should exchange School Trust Lands in the Boundary Waters area for 30,000 acres of Superior National Forest. Since by law Minnesota would be bound “to secure maximum long-term economic return” from lands thus acquired, Dill proclaimed, “we should mine, log, and lease the hell out of that land.”

Dill understood this much: if there is hell to be found in Superior National Forest, there is probably no better way to bring it out.

The unanswered question in Minnesota and throughout the Lake Superior region is not, however, theological: it’s whether extractive industries and the developments they bring will actually deliver “long-term” economic benefit for the region, and not just a short-term spurt or boom, or another period of destructive plunder followed by long-term decline. That is not just a question up for debate by economists and other experts; it is, at root, a political question.

As I’ve suggested in my first two posts in this series, the complaint filed by the Marquette County Road Commission against the EPA is part and parcel of an effort to shut this question down, or exclude it from public consideration. This complaint is only incidentally about a haul road. It’s part of a political offensive that aims to stifle debate and hand the future of the region over to unseen powers. Those powers lurk under legal cover of the dark 501c4 “public welfare” organization funding the MCRC’s lawsuit against the EPA.

So with this lawsuit, the Road Commission pretends to political authority that goes way beyond building and maintaining Marquette County’s roads: it assumes the authority to direct economic development in Marquette County and decide what’s in the area’s best interest. In order to seize that authority, I’ve said, the complaint sets up an “anti-mining” straw man, and tries but fails to prove that the EPA had a “predetermined plan” to prevent the construction of County Road 595.

No surprise, then, that the argument gets especially tendentious whenever the complaint tries to demonstrate collusion or discover “anti-mining” attitudes within the ranks of the EPA itself; and where it comes up short, it raises questions about the motives and associations of those bringing these allegations.

Consider, for example, the report to Senator Carl Levin’s office by an unidentified “informant” (Exhibit 15), who alleged that at a meeting with “environmental and tribal groups,” EPA Regional Administrator Susan Hedman made remarks to the effect that:

1. the EPA will fight mining in Michigan,
2. that there will be no mining in the Great Lakes Basin,
3. that there was or will be an EPA sponsored Anti-Mining committee, and
4. that the KBIC [Keweenaw Bay Indian Community] tribe had received an EPA grant which [sic] they used the funds to sponsor an anti-mining activity.

The informant seems to have been lying in some places and exaggerating in others: Hedman claims she never made the remarks attributed to her. But the MCRC complaint doesn’t hesitate to repeat the informant’s false allegations, and it tries to build its case around Senator Levin’s staffer’s awkward summary of what she heard from an unnamed informant who proved untrustworthy in every particular.

True to pattern, the complaint casts both environmental groups and the KBIC as “anti-mining groups” as it doubles down on the informant’s lies. The detail about the EPA grants is wildly inflated. The EPA gave the tribe “hundreds of thousands of dollars,” the MCRC claims, even as the KBIC was “actively lobbying USEPA against local mining and against CR 595.” This turns the false report of an unspecified “anti-mining activity” to “actively lobbying,” and it neglects to mention that EPA grants to the KBIC are, in large part, to help the tribes cope with the lasting damage done by mining and industrialization. (In recent years, grants have supported things like a survey of tribal fish consumption habits to reduce health risks associated with contaminants in fish, or the tribal Brownsfield response program.)

The phrase “actively lobbying” is especially cheeky here, for a couple of reasons.

First, the Eagle Mine project went ahead without the full, prior and informed consent of the KBIC. A Section 106 hearing ignored testimony from tribal elders that the ground at Eagle Rock is sacred to the Ojibwe, and objections by the KBIC and the Ho Chunk to the location of the mine portal at Eagle Rock were summarily dismissed. Tribal appeals to the EPA went unheeded.

Second, if we are really going to start tracking lobbyists and money spent on lobbying efforts, then in all fairness let’s spread the sunshine around and give a full account of money and efforts spent actively lobbying for mining interests in northern Michigan and throughout the Lake Superior region over the last decade. Or if that is too arduous a task, a full accounting of the money behind this complaint would suffice.

The complaint also fails to mention that the EPA responded immediately to Senator Levin’s office with a full schedule of grants given to the KBIC and the charter of the “cross-media” mining group at EPA Region 5. Cross-media groups are formed to satisfy the Cross-Media Electronic Reporting Rule. The fearsome EPA-sponsored “Anti-Mining” group turned out to be a specter of the informant’s imagination, and really comes down to bureaucratic reshuffling in order to make electronic reporting easier. There’s just no red flag to raise.

Elsewhere, when the complaint tries to demonstrate “anti-mining” sentiment within the EPA itself, the best the MCRC can do is police tone. There is an EPA official who writes “sarcastically” to a colleague at the Army Corps of Engineers, and then there are a couple of sentences in a January 2011 email by Daniel Cozza, an EPA Section Chief. Cozza refers to Wisconsin as “the new front” and says that in a three-hour town hall meeting Governor Scott Walker was “pushing jobs” when promoting the Gogebic Taconite project.

I think the WI Governor’s additions to the Welcome to WI signs stating ‘Open for Business’ is a sign of things to come. I listened to the 3hour [sic] townhall meeting last night regarding the G-TAC or taconite mining project in the Gogebic Penokee range and sounds like they are pushing jobs.

This sounds pretty innocuous, and I am unsure where the offense is: “pushing jobs”? That’s a pretty apt description of the rhetorical tactics used to promote mining in midwestern districts and around the world for that matter. Job numbers are overstated, as Tom Power notes in his study of sulfide mining projects in Minnesota. In Wisconsin, Senator Tim Cullen, Chair of the Senate Select Mining Committee, said he was amazed that immediately upon signing a controversial mining bill into law in 2013, Scott Walker and his cronies were “telling the workers of Wisconsin, who need jobs, that the jobs are just around the corner….The people who understand the mining industry know the jobs are years away.”  Sounds like they were being pretty pushy to me.

Of course, “front” might suggest a battle or military campaign, or it might imply that Cozza sees himself or the EPA as embattled, fighting against the encroachment of mining projects — which of course the EPA is, and will continue to be if it is going to protect the environment against the resurgence of mining all around Lake Superior. Forbes Magazine, hardly a bastion of environmental activism, struck the same note when it ran an article on Gogebic Taconite’s Chris Cline with the title: “Billionaire Battles Native Americans Over Iron Ore Mine”; Dale Schultz, a Republican State Senator who broke with his party to oppose Wisconsin’s mining legislation, said his conscience would not allow him to “surrender the existing environmental protections without a full and open debate”: no one gasped in horror and astonishment at the white-flag battleground metaphor. Mike Wiggins, Chair of the Bad River Band of Lake Superior Chippewa, did not mince words and declared the Gogebic project tantamount to “genocide,” as it would kill the wild rice crop. The list could go on.

So the real objection is that some people working at EPA are not enthusiastically on board with the agenda of the mining company and its development plans for the area. They’re not supposed to be; they’re supposed to protect the environment. The complaint is still far from proving that the EPA itself, when making its specific determinations about CR 595, acted with bias or according to a predetermined plan.

It’s interesting, however, that the complaint should make an example of Daniel Cozza and his attitudes toward Wisconsin mining. Cozza has a long history with the environmental regulation of mining in Wisconsin, and he was working in EPA Region 5 when the Crandon Mine project unraveled, due to the inability of the mine’s backers, which included Eagle Mine developers Rio Tinto and Kennecott Minerals, to meet tribal water quality standards and deliver appropriate environmental assurances. Cozza is said to have caused “consternation” when he reminded Crandon Mining in a letter of its “duty to look at the cumulative economic and environmental impacts” of other mining projects in the region; and it was this big picture perspective that prevailed when Governor Tommy Thompson signed a mining moratorium into law in 1998.

To many people inside and outside the mining industry, Crandon seemed to signal the end of mining in Wisconsin, and there are still bitter feelings within the industry about the failure of the Crandon project. Having lost in the courts and the legislative arena, the industry and its backers resorted to other means, achieving their first big comeback victory in Wisconsin with Scott Walker’s 2013 mining bill.

By signing it, the governor also obliterated his past. He had voted for the mining moratorium in 1998 as a member of the Wisconsin Assembly. As governor, Walker worked to ease regulations, and did a decisive about-face during his 2012 recall election, when he received a $700,000 contribution from Chris Cline and Gogebic Taconite. That mind-blowing, mind-changing contribution came via the Wisconsin Club for Growth, a dark money 501c4 like Stand U.P., the organization now putting up other people’s money — whose? — for the Marquette County Road Commission’s lawsuit against the EPA. Corruption is in the cards.