Federal judges today lost all patience with U.S. EPA when considering why it has taken more than 30 years to fulfill a congressional mandate requiring large industries like hardrock mining to assure the agency they can cover the cost of cleaning up their pollution.
Environmentalists are asking the U.S. Court of Appeals for the District of Columbia Circuit to force the agency to promulgate so-called financial assurance regulations as required by the 1980 Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA, which established EPA’s Superfund cleanup program.
EPA in 2009 said it would propose a rule for hardrock mining by August 2016 and finalize it three years later. The environmental groups are pressing the court to require EPA to meet that schedule for the proposal, issue a final rule a year later, and promulgate rules for the chemical manufacturing, petroleum refining and electricity generation sectors.
Justice Department attorney John Sullivan, representing EPA, told the court that he was "pleased to report" that EPA is on schedule for the August 2016 hardrock mining rule and is on the verge of sending a "proposed rule framework" to stakeholders.
But the remark left Judge Judith Rogers incredulous. She asked Sullivan what a "proposed rule framework" is.
"How do we know that it’s anything?" she asked. "I can’t understand what it is."
Rogers, a Democratic appointee, continued to press Sullivan, eventually asking him if he has seen the framework. Sullivan had not but said it would outline how the rule would work.
"They haven’t done this yet?" she asked. "It’s amazing to me that you have not read — or even seen — the document that is supposed to assure this court."
Judge Patricia Millett, another Democratic appointee, appeared equally concerned, asking Sullivan why it took the agency more than 30 years just to come up with a framework.
Still, it was unclear whether a majority of the three-judge panel would side with the Idaho Conservation League, the Sierra Club, Earthworks and other environmental groups.
The groups appeared to have a receptive audience on the panel with regard to the merits of the case, but first they have to clear a key procedural hurdle in order for the panel to reach those issues.
And the panel clearly expressed concerns about whether they have adequately established standing to sue.
Millett pressed Amanda Goodin of Earthjustice on whether the groups have established a "particularized injury" caused by EPA’s failure to act.
Goodin pointed to declarations provided by the groups’ members regarding the pollution caused by existing mines and potential future mines.
Hardrock mining, in particular, has enormous effects on the environment. EPA has said the practice and, in particular, its wastes are responsible for polluting approximately 440,000 acres of land and contaminating 10,000 miles of rivers and streams.
The mining industry, Goodin said, has acknowledged that requiring financial assurances "incentivizes facilities to manage and store their hazardous materials safely."
Millett acknowledged that the 30-year delay gives the environmental groups a "really strong case" because the regulations "never seem to move from the back burner."
But Millett appeared concerned about the February 2013 Supreme Court ruling in Clapper v. Amnesty International. In that case, the court held that groups of journalists, labor officials and human rights activists could not challenge government surveillance laws because they could not definitively show their phones had been or would be wiretapped.
The ruling established that plaintiffs must show that their future injury is "certainly impending" (Greenwire, May 20, 2013).
Millett questioned whether the environmentalists had not met that standard, and Sullivan, EPA’s lawyer, repeatedly said that their claim of harm due to a potential gold mine was "speculative."
Later, however, Millett gave some indication that the environmentalists may indeed have standing.
Another issue that plagued the environmental groups was what, exactly, the court could do to satisfy their claim.
Goodin said the court should mandate the promulgation of the proposed hardrock rule by August 2016. It should then give EPA 16 months from the court’s ruling to propose rules for the three other sectors, with final rules due a year later.
Judge Karen Henderson, a Republican appointee, asked if there was any precedent for the D.C. Circuit to set hard deadlines.
"Have we ever done this before?" Henderson asked.
Typically, the court directs EPA to reconsider a policy the court vacates and provide updates on its progress.
In what was a potential sign that she believed the groups have standing, Rogers pressed EPA’s attorney on what a reasonable schedule for the other three sector rules would be.
Sullivan provided none, arguing that EPA has yet to determine that they are even necessary for those industries.
That provoked a stern response from Rogers, who said the court wouldn’t "enjoy" forcing EPA to act. But the agency is giving judges nothing concrete to work with, she said, which could force "drastic action."
Michael Giannotto of Goodwin Procter, representing the National Mining Association, argued against stripping EPA of discretion in deciding whether or not the rules are warranted. He argued that mining projects are already heavily regulated by other laws and regulations.
If EPA is rushed into a final rule, the issue would quickly be back at the D.C. Circuit because mining companies would challenge it as arbitrary and capricious.
"So let’s get started!" Rogers replied, expressing her impatience with the delays.
A decision on In re: Idaho Conservation League is expected later this year.