This story was updated.
Administrator Scott Pruitt has moved to restrict EPA’s ability to nix water pollution permits, in a rebuke of how the Obama administration used the agency’s veto power.
Under the Clean Water Act, the Army Corps of Engineers is the permitting agency for dredging and filling in waterways and wetlands, but EPA has the ability to veto permit specifications it does not agree with under Section 404(c) of the law.
For decades, EPA policy didn’t explicitly prevent the agency from moving forward with vetoes before, during or after the permitting process.
A new memo from Pruitt to EPA’s Office of Water and regional administrators would change that.
It eliminates EPA’s ability to move against a project before a permit application has been filed with the Army Corps and eliminates the agency’s ability to retroactively veto a project post-permit.
"When the EPA uses its authority preemptively and without the benefit of the fully developed factual record or attempts to reimagine its authority in ways that diverge from statutory text or congressional intent, it diverts its attention from its core mission and engages in decision-making without a full understanding of the impacts of those decisions," Pruitt’s memo said.
Before initiating the veto process, Pruitt is also requiring regional administrators to review a project’s environmental impact statement (EIS) and obtain approval from headquarters.
"Today’s memo refocuses EPA on its core mission of protecting public health and the environment in a way that is fair and consistent with due process," Pruitt said in a statement. "We must ensure that EPA exercises its authority under the Clean Water Act in a careful, predictable, and prudent manner."
EPA has issued 13 vetoes since 1980, the majority of which came during the Reagan administration, but two separate actions under President Obama rankled industry and conservatives.
In 2011, EPA rejected permits for the Spruce mine, a mountaintop-removal coal operation in West Virginia, several years after the Army Corps approved them.
Then, in 2014, the agency — relying on a watershed assessment — proposed restrictions to protect Alaska’s Bristol Bay from mining. The company behind the massive Pebble project had yet to formally submit a permit application.
Pruitt directly addresses EPA’s process for Pebble mine in his memo, concluding that, "I believe that it is critical for the agency to participate in the EIS process and review the final EIS in detail before determining whether to proceed with the section 404(c) process in this case."
Such a timeline could get Pruitt off the hook for making a final decision on Pebble — a project that has been controversial for more than a decade.
He has already been in hot water for proposing to withdraw the proposed Obama restrictions and then deciding to keep them in place pending environmental review.
The Army Corps is still in the scoping phase of that process, but says an EIS may be complete by 2019. It’s not unusual, however, for major project reviews to take several years.
Pebble spokesman Mike Heatwole called Pruitt’s memo a "strong policy decision regarding the problems with preemptive and retroactive 404c actions."
He said, "We are pleased with the confirmation that EPA judgement on Pebble will be based on a full EIS review of our project rather than the flawed, hypothetical [Bristol Bay watershed assessment]."
The National Mining Association similarly celebrated Pruitt’s move, calling it "a vital step forward in returning certainty and order to the permitting process in the U.S."
Spokeswoman Ashley Burke wrote in an email, "Even the mere threat of retroactive and preemptive veto actions has harmed America’s competitiveness when it comes to attracting investment in U.S.-based mining projects, adding volatile obstacles into what is already an extensive, established process at the state and federal levels."
But former EPA Region 10 Administrator Dennis McLerran, who oversaw the Pebble veto process, slammed the new memo. He called it "disingenuous" to say a veto issued before a permit application is filed circumvents due process.
McLerran argued that EPA’s assessment underwent a more rigorous review than environmental impact statements do, noting that the agency held numerous public meetings and submitted the document to peer review.
Waiting to start the veto process until after the Army Corps is nearly done with a permit application, McLerran said, would waste federal resources and be unfair to the applicants.
"This veto is not a creation of EPA, it is part of the statute created by Congress," he said. "The intent of the statute is very, very clear that if there are significant effects from the placement of fill material, you should give an early warning that saves everyone time and money."
In litigation related to the Spruce mine veto, the U.S. Court of Appeals for the District of Columbia Circuit relied on a literal interpretation of the Clean Air Act, saying EPA could veto the Army Corps’ permits "whenever" it pleased.
Reporter Dylan Brown contributed.