Tag Archives: Water

A Comment on the Aquila Back Forty Wetland Permit

AquilaWetlandMap

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

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

To the MDEQ:

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

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

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

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

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

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

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

Another Note on the Boundary Waters Reversal

Jorjani Calendar

A 25 July 2017 entry from Daniel Jorjani’s calendar shows a meeting with Antofagasta Plc on the Twin Metals project.

One point I hoped to get across in Monday’s post about the Boundary Waters reversal has to do with journalism, or, more broadly, with storytelling. Just to highlight: scandal-mongering that generates clicks doesn’t necessarily get at the more prosaic and more complex truth of the story, and may end up doing a disservice. In the case of the Boundary Waters reversal, it is tempting to focus on the story of Chilean billionaire Andronico Luksic Craig and his Washington, D.C. tenants, Ivanka Trump and Jared Kushner. Was Luksic Craig’s purchase of the mansion where Jared and Ivanka now live an opening bid? Was the reversal connected to the rental?

This story of the rich and famous still merits investigating, but it carries with it a whole set of ideas — exaggerated and somewhat cartoonish ideas — of what corruption looks like: foreign billionaires, mansions, nepotism, winks and nods (remember what Luksic Craig said about meeting Trump at the Patriots’ game: “lo saludé.” “I said ‘hi’”).  All of those elements are certainly in play here, and they are part of what makes this administration appear so unabashedly corrupt and downright villainous.

At the same time, the story of Luksic Craig and his D.C. tenants could turn out to be a red herring, or what nowadays people call a nothingburger or fake news. Besides, there’s another, more immediately credible story that’s just there for the telling. What it lacks in tabloid glamour it makes up for with evidence. It unfolds among the banalities of meeting rooms, conference calls, memos, and after work events. This is the story Jimmy Tobias pursues in an excellent piece in the Pacific Standard, which I had not read before writing my post (and which, after reading, I linked to in a postscript).

Tobias beat me to the punch on the FOIA request, and obtained Principal Deputy Solicitor Daniel Jorjani’s calendar from May through December of 2017. He identifies two meetings about the Twin Metals project. The first is on June 14, 2017, with Raya Treiser and Andy Spielman of WilmerHale, the law and lobbying firm, on behalf of Antofagasta Plc.

Spielman is the Chair of WilmerHale’s Energy, Environment and Natural Resources Practice, and his name appears on the calendar heading, so we know that this is a high priority matter for the lobbying firm and presumably for the Department of Interior. And Treiser comes directly from the Department of the Interior, where she served under President Obama. She helped to “streamline” permitting on large infrastructure projects, and worked on the reform of offshore drilling regulations and energy development in Alaska. Now, as her biography on the WilmerHale site informs us, she has “successfully leveraged her substantive knowledge and insight into government processes.”

The second meeting is directly with Antofagasta Plc: the Chilean mining company comes to the Department of Interior to discuss its Minnesota claim, and it appears the Department rolls out the red carpet. WilmerHale had done its work. In addition to Principal Deputy Solicitor Jorjani, thirteen administration officials are in attendance, representing the highest reaches of the Department of Interior, the Bureau of Land Management, and the Environmental and Natural Resources Division of the Department of Justice. As Tobias notes, no conservation groups were invited to discuss the reversal with the Department of Interior. This was a conversation for insiders only.

At the center of this story is not a mansion, but a revolving door (and if you are not familiar with Bill Moyers’ short video essay on the subject, you should be). This feature of the story becomes even more apparent when we look at a couple of other meetings on Deputy Solicitor Jorjani’s calendar that Tobias didn’t flag but are connected with the Boundary Waters reversal. One is a Friday, May 26 call with Rachel Jacobson of WilmerHale, regarding a “DC Bar Event”; this call or this event might well have provided an opportunity to tee up the Twin Metals issue. It is the first contact WilmerHale makes with Principal Deputy Solicitor Jorjani— and who should they choose for that task but Jacobson, who held Jorjani’s job of Principal Deputy Solicitor under the Obama administration.

Then on Thursday, September 7th, when work on the reversal memo is presumably well underway, there is an internal meeting on Twin Metals: Jorjani with Jack Haugrud, who was Acting Secretary of the Interior until Zinke’s appointment, and Joshua Campbell, an Advisor to the Office of the Solicitor. Campbell is profiled here, on Western Values Project “Department of Influence” site, documenting the revolving door between special interests and the Department of Interior.

In these meetings, the public interest does not even come into play.

Postscript: Today, as I was writing this post, the Washington Post reported that the Forest Service will cancel a planned environmental impact study and instead conduct an abbreviated review of the Obama-era proposal to withdraw the Superior National Forest lands near the Boundary Waters from minerals exploration for up to 20 years. The story also appears in the Star Tribune. Things are moving fast now, and pressure is mounting.

MCRC v. EPA at the Sixth Circuit

mcrc_map1s

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

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

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

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

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

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

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

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

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

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

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

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

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

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 Note on Stone’s “Should Trees Have Standing?”

A report in the New York Times the other day about the Federal District Court case naming the Colorado River as plaintiff led me to Christopher D. Stone’s 1972 Southern California Law Review article, “Should Trees Have Standing?” Justice Douglas drew on Stone’s arguments to formulate his dissent in Sierra Club v. Morton, and since that time the essay has been widely influential, a classic that helped define a field.

For Stone, a river or a lake, a mountain or a forest, a species or the biosphere can have roughly the same status as other “legal incompetents.” A human guardian or, as we might say nowadays, a protector brings a complaint for a natural entity that has suffered some injury. The case is brought “at the behest of” the river or mountain, without having first to prove injury to the guardian or some third party (e.g., a fishing guide whose business has suffered as the result of stream pollution); and the natural entity itself would be the beneficiary of an award or remedy ordered by the court. So, for instance, a judgment against those who have polluted a stream might direct them to undo the damage done to its waters, mitigate erosion of its banks and depletion of its plant life, restock its fish, and so on. The stream would have a “right” to be made whole again.

Stone recognizes that his proposal “is bound to sound odd or frightening of laughable,” but that, he notes, has been true of any movement to confer rights on rightless “things”:

There will be resistance to giving the thing “rights” until it can be seen and valued for itself; yet it is hard to see it and value it for itself until we can bring ourselves to give it “rights” — which is almost inevitably going to sound inconceivable to a large group of people.

Stone’s thinking can seem way ahead of its time — and ours (even if the writing here is sometimes redolent of Southern California in the early 1970s). This is especially true toward the end of the piece, where Stone moves from making strictly jural arguments for the standing of rivers, trees, and other natural entities to broader observations about the “shift from the view that nature exists for men”:

…the time is already upon us when we may have to consider subordinating some human claims to those of the environment per se. Consider, for example, the disputes over protecting wilderness areas from development that would make them accessible to greater numbers of people. I myself feel disingenuous rationalizing the environmental protectionist’s position in terms of a utilitarian calculus, even one that takes future generations into account, and plays fast and loose with its definition of “good.” Those who favor development have the stronger argument — they at least hold the protectionist to a standstill — from the point of advancing the greatest good of the greatest number of people. And the same is true regarding arguments to preserve useless species of animals, as in [the case of sea urchins endangered by a nuclear power plant.] One can say that we never know what is going to prove useful at some future time. In order to protect ourselves, therefore, we ought to be conservative now in our treatment of nature. I agree. But when conservationists argue this way to the exclusion of other arguments, or find themselves speaking in terms of “recreational interests” so continuously as to play up to, and reinforce, homocentrist perspectives, there is something sad about the spectacle. One feels that the arguments lack even their proponent’s convictions. I expect they want to say something less egotistic and more emphatic but the prevailing and sanctioned modes of explanation in our society are not quite ready for it. In this vein, there must have been abolitonists who put their case in terms of getting more work out of the Blacks. Holdsworth says of the early English Jew that while he was “regarded as a species of res nullius … [H]e was valuable for his acquisitive capacity; and for that reason the crown took him under its protection.” (Even today, businessmen are put in the position of insisting that their decent but probably profitless acts will “help our company’s reputation and be good for profits.”)

For my part, I would prefer a frank avowal that even making adjustments for esthetic improvements, what I am proposing is going to cost “us,” i.e., reduce our standard of living as measured in terms of our present values.

We may still not be “ready for it,” as Stone puts it; and, he goes on to say, there might be a more “fundamental problem” with asking human beings to put their own immediate self-interest aside and act on ethical principle, or to limit our rights in order to respect the rights of others:

Insofar as the proposal is not just an elaborate legal fiction, but really comes down in the last analysis to a compromise of our interests for theirs, why should we adopt it? “What is in it for ‘us’?”

This is a question I am prepared to answer, but only after permitting myself some observations about how odd the question is. It asks for me to justify my position in the very anthropocentric hedonist terms that I am proposing we modify. One is inclined to respond by a counter: “couldn’t you (as a white) raise the same questions about compromising your preferred rights status with Blacks?”; or “couldn’t you (as a man) raise the same question about compromising your preferred rights status with women?” Such counters, unfortunately, seem no more responsive than the question itself. (They have a nagging ring of “yours too” about them.) What the exchange actually points up is a fundamental problem regarding the nature of philosophical argument. Recall that Socrates, whom we remember as an opponent of hedonistic thought, confutes Thrasymachus by arguing that immorality makes one miserably unhappy! Kant, whose moral philosophy was based upon the categorical imperative (“Woe to him who creeps through the serpent windings of Utilitarianism”) finds himself justifying, e.g., promise keeping and truth telling, on the most prudential-one might almost say, commercial-grounds. This “philosophic irony” (as Professor [S. Morris] Engel calls it) may owe to there being something unique about ethical argument. “Ethics cannot be put into words”, Wittgenstein puts it; such matters “make themselves manifest.” On the other hand, perhaps the truth is that in any argument which aims at persuading a human being to action (on ethical or any other bases), “logic” is only an instrument for illuminating positions, at best, and in the last analysis it is psycho-logical [sic] appeals to the listener’s self-interest that hold sway, however ”principled” the rhetoric may be.

That logic may have its limits and ethical argument its attendant ironies should not deter us. “The strongest case can be made from the perspective of human advantage,” Stone writes; and after reviewing that case, he goes on to suggest that protecting the environment will actually raise our standard of living, if not in terms of our present values, then (this point deserves emphasis) in terms of new and more durable values.

Stone is even prepared to argue that “a radical new conception of man’s relationship to the rest of nature would not only be a step towards solving the material planetary problems” (and the problems Stone identifies here, in 1972, are still very much with us and more urgent than ever before: melting polar ice caps, dying oceans, serious threats to water). “There are strong reasons for such a changed consciousness [Stone admits that he is uncomfortable with the term] from the point of making us far better humans.” Recognizing the rights of those whose standing once seemed “unthinkable,” to borrow Stone’s phrase, surely has.

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.

Three Questions for the Michigan DEQ on the Back Forty Project

Earlier this month, the Michigan Department of Environmental Quality announced its intention to permit the Back Forty Project, an open-pit gold and zinc sulfide ore mine that Aquila Resources, a Canadian company, plans to develop near the headwaters of the Menominee River. In response to the MDEQ’s request for public comment by November 3rd, I’ve submitted these three questions. I’m posting them here so that others might consider them in the run up to the public meeting with the MDEQ in Stephenson, Michigan on October 6th.

  1. In determining that the Back Forty Project application meets the requirements for approval under Part 632, did MDEQ take into account the cumulative effects of sulfide mining throughout the Lake Superior watershed? We know that the Back Forty project poses a significant risk to the Menominee River all by itself. With the mine in close proximity to the river, a flood, berm collapse, subsidence or a slide could destroy the Menominee River; to answer these serious concerns by asking the company to add a “synthetic, manmade liner under their waste/tailing rock facility,” as the DEQ has proposed, is to trivialize them. Other development that the mine will inevitably bring, including haul routes, power lines, lights, fueling stations, exhaust and machine noise, will leave a large industrial footprint and disturb the Menominee River and its environs in countless ways. At the same time, this mine will heighten the risk, in the long term, of large-scale environmental destruction posed by the resurgence of sulfide mining not just in Michigan’s Upper Peninsula, but in Minnesota and Canada as well — all around the lake and throughout the Lake Superior watershed. Has the DEQ completed or participated with neighboring state agencies and tribal authorities in a scientific study of the cumulative impacts of sulfide mining around Lake Superior? Has the DEQ issued guidance on how cumulative environmental effects should factor into its decision-making process for permitting new mines in Michigan?
  2. Has MDEQ made any determination about the human rights implications of its decision to allow the Back Forty project to go forward? Human rights are not outside the DEQ’s bailiwick, no matter how hard it may try to exempt itself. Witness Flint. In the present case, the DEQ’s oversight is inextricably bound up with the state’s obligation to protect human rights abuses by third parties. Aquila’s Back Forty project is sure to disturb, and likely to desecrate, lands traditionally belonging to the Menominee and still held sacred by them; and making provisions for archaeological recovery and preservation of mounds and other sacred sites does not adequately address the basic human rights issues involved here. The headwaters of the Menominee River are central to the tribe’s creation story, marking the place where the Menominee people originated. Their very name derives from manoomin, or wild rice, which will not survive changes in sulfate levels or degradation of overall water quality. As tribal member Guy Reiter has said, “It’s no different than if an open-pit sulfide mine was put in Bethlehem for the Christians.” Seen from this perspective, the Back Forty is not only an affront to Menominee history; it also puts the cultural survival of the Menominee people at risk. How will the DEQ factor such human rights considerations into its decision-making process?
  3. What has the DEQ done to restore trust in its authority, and reassure the Menominee and people living downstream from the Back Forty project in Michigan and Wisconsin that it will exercise appropriate care? The Flint water crisis cast a long shadow, and reinforced the perception that “politics and poverty are big factors” in DEQ decision making. “The same attitude of disregard for citizens and the environment has repeated itself in DEQ decisions across our state for well over a decade,” said Marquette attorney Michelle Halley after news of the Flint water crisis broke; controversy over the renewed Groundwater Discharge Permit issued by MDEQ at Eagle Mine and legitimate concerns about lax oversight at Eagle East help make her case. Like all government agencies, the Michigan DEQ should operate in sunlight. Already, however, troubling questions have been raised about the transparency of the Back Forty permitting process. For example, Al Gedicks, Executive Secretary of the Wisconsin Resources Protection Council, asks why the DEQ appears to be in a “rush” to grant the Back Forty permit. So as things now stand, the DEQ enjoys de jure authority in Michigan under Part 632, but it is unclear whether the DEQ still enjoys de facto authority, which could only derive from demonstrations of regulatory competence. How does MDEQ intend to quell public concern that it is compromised or incompetent, and reassure the public that it is a responsible steward?

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.