Panel votes to curb EPA’s veto power

The House Transportation and Infrastructure Committee voted Wednesday to put time limits on when the Environmental Protection Agency (EPA) can block permits for dumping material into waterways.

Under the Regulatory Certainty Act, the EPA would not be allowed to take any action against a permit to put dredge or fill material in waterways or wetlands until an application is filed or a permit is issued.

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The bill’s supporters said they were targeting two recent actions by the EPA: a decision to retroactively revoke a permit in West Virginia years after it was granted and a move that started the process to veto a permit in Alaska before an application was filed.

“Revoking a permit, or trying to block a party from even being able to apply for a permit, as EPA has done here, is unsettling, and simply unfair,” Rep. Bob Gibbs (R-Ohio), the bill’s sponsor, said at a Wednesday meeting of the panel. “It is an arbitrary and irresponsible way for government to act, and raises due process concerns.”

The Army Corps of Engineers has the authority under Section 404 of the Clean Water Act to grant dredge or fill permits, but the EPA can veto the permits for environmental reasons. Under Gibbs’s bill, the agency would have a window of as few as 30 days to consider a veto, starting when the Army Corps decides to grant the permit.

Rep. Nick Rahall (W.Va.), the top Democrat on the panel, cited the West Virginia case in his support of the bill. Mingo Logan Coal Co.’s Spruce Fork permit was at issue.

“By vetoing that permit, the EPA demonstrated that its word is no good, that permit negotiations are a farce, and that 404 permits are worthless,” Rahall said.

Some Democrats said the bill would unnecessarily tie the EPA’s hands, however.

“This legislation is premised on the idea that this administration has somehow expanded its interpretation of EPA’s oversight authority over Section 404 permits,” said Rep. Tim Bishop. (D-N.Y.) “However, as was noted at yesterday’s hearing of the subcommittee on Water Resources and Environment, EPA’s recent actions with respect to its 404(c) authority are neither new nor expanded,” he said.

Rep. Jerry Nadler (D-N.Y.) criticized his colleagues for taking sweeping action based on the two cases.

“What I’m hearing is that members disagree with a particular decision. Maybe they were right and maybe they were wrong in that decision,” Nadler said. “But to try to hamstring EPA to a narrow timeframe ... in the future because you disagree with a specific decision is wrong, especially when they haven’t abused that.”