In a scorching showdown letter dated May 10, House Oversight and Government Reform Committee Chairman Darrell Issa and Subcommittee Chairman Jim Jordan demanded that Environmental Protection Agency Administrator Lisa Jackson surrender documents she doesn’t want made public.
The seething but civil congressmen requested all the documentation that went into the EPA’s unprecedented and legally questionable attempt to preemptively block the permit of Alaska’s multi-billion dollar Pebble copper mine even before the permitting process begins.
This novel, front-end attack on jobs and economic development hinges on the convoluted Clean Water Act (CWA) and clever gimmicks lurking in its litigation-prone Section 404(c). Water is the regulator’s perfect power grab target; nearly every development needs water.
The proposed mine itself, with its massive copper deposit and smaller amount of gold, is just a convenient symbol to trigger anti-mine public emotion. Issa and Jordan evidently realized that the EPA was using the Pebble project as a test bed to inflate the agency’s total regulatory authority far beyond the clear intent of Congress.
EPA’s weapon is what matters; it’s a supposedly scientific “watershed assessment” of the Bristol Bay locale surrounding the proposed mine, conducted before the scientists had any idea of what the mine would look like, with no input from the mine developers, and manipulated to show potentially horrible damage to a prized salmon run, something scary enough to justify withholding the permit.
That’s the EPA’s clever new power grab gimmick: a preemptive veto. No permit, no mine.
Now, hypothetically apply that power to every new development in America’s future: No permit, no anything. You can see where this is going.
The Issa and Jordan oversight letter specifically told EPA to “provide the requested information prior to EPA’s release of its Bristol Bay watershed assessment, but no later than 5:00 p.m. on Thursday, May 24, 2012.”
EPA thumbed its nose at congressional oversight and defiantly released the Bristol Bay watershed assessment on Friday, May 18, to huge and clearly orchestrated media attention, showing potentially horrible damage to a prized salmon run, something scary enough to justify withholding the permit.
EPA did not provide the requested documentation to the Congress of the United States.
Obama’s increasingly dictatorial agency and its autocratic boss Lisa Jackson may not like what they get back. Rep. Darrell Issa “has become a major figure since taking over as chairman of the oversight panel following the Republicans regaining the House majority in 2010,” said Washington Examiner Executive Editor Mark Tapscott, “especially as a result of his dogged pursuit of the facts behind the Operation Fast and Furious scandal.”
Fast and Furious was an incredibly stupid undercover program operated by the Justice Department, a botched “gun-walking” project supposedly intended to smoke out Mexican drug lords by allowing thugs to “walk” firearms across the border as bait to catch higher-ups. After intense probing and confrontational oversight hearings, Issa revealed that the project had captured no big-time crooks and only inflamed border violence – at taxpayer expense. Today, Issa is an investigative hero.
When the EPA oversight issue came before the committee, Issa’s exceptional instinct never seemed to swerve off of the real target: stopping the agency from expanding its regulatory authority.
President Obama alienated West Virginia’s powerful Democrats, Gov. Earl Ray Tomblin and Sen. Joe Manchin, when his EPA used Section 404(c) to yank the lawful permit of a large and well-established in-state coal mine. West Virginia’s “coal vote” then spoke. Keith Judd, a convicted felon incarcerated in a Texas federal prison, won nearly 41 percent of the state’s May 8 Democratic presidential primary vote away from Obama. Joe Biden told the media in priestly tones, “I understand. They’re frustrated. They’re angry.”
West Virginia also figured significantly in Issa’s oversight letter; the dispossessed coal company sued the EPA for retroactively pulling its permit and won.
Issa reminded Jackson of her defeat: “Last month, a U.S. District Court judge ruled that EPA’s action in this instance was illegal. In its opinion, the Court noted:
“EPA’s position is that section 404(c) grants it plenary authority to unilaterally modify or revoke a permit that has been duly issued by the Corps [the Army Corps of Engineers] – the only permitting agency identified in the statute – and to do so at any time.
“This is a stunning power for an agency to arrogate to itself when there is absolutely no mention of it in the statute. It is not conferred by section 404(c), and is contrary to the language, structure, and legislative history of section 404 as a whole.”
That made it clear to Jackson on May 10 that Issa saw a similar court test coming on Pebble. Yet she insolently released the watershed assessment on May 18 despite congressional oversight’s instructions to the contrary.
Why was Jackson so confident of ultimate success? Who would benefit from a massive EPA power grab? Who had her back?
Perhaps Issa’s most inspired demand for documentation was this: “Please provide a list of all individuals, along with their organizational affiliations, that you have met with regarding these petitions for the Bristol Bay watershed assessment and the dates of those meetings.”
With that, the oversight letter leaves us to our own resources. Who’s on Issa’s list?
To begin, who first got the idea that Section 404(c) was the EPA’s passport to imperial power?
The EPA’s website says that “EPA initiated this assessment in response to petitions from nine federally recognized tribes and other stakeholders who asked us to take action to protect Bristol Bay’s salmon populations.”
Enter Geoffrey Y. Parker, a sixty-something lawyer in Anchorage, Alaska, who penned a 60-page article in a 2012 Seattle law review with a long title beginning, “Section 404(c) of the Clean Water Act…”
It also contained an author biography which tells us that Parker is “co-counsel to six federally recognized tribes which filed the initial petition [dated May 2, 2010] to EPA that it commence a public process under Section 404(c) of the Clean Water Act.”
The six original tribes grew to nine, and a flood of nearly identical letters came from various tribes and commercial fishing trade groups, insisting that EPA use Section 404(c) to stop Pebble mine. The letters also emphasized that “leadership and purpose” from EPA would be necessary, hinting that some kind of blank check, a large “Support EPA” effort, was in the works.
Ten months later, the EPA had the blank check. Jackson somehow seemed to know she could depend on the makers, so she cashed it. On February 7, 2011, the EPA announced it would begin a “public process” for Pebble in the form of a watershed assessment.
Parker appears to be the first person to see the possibility of slanting regulations in favor of EPA power by using Section 404(c) of the Clean Water Act, but how did an otherwise unremarkable Alaskan lawyer arrange the splashy, orchestrated anti-Pebble campaign that exploded on Washington, D.C. less than a month later?
He didn’t. He didn’t have to. His private law firm had represented the multimillion dollar angler’s group Trout Unlimited for at least a decade, and that’s where the highly coordinated anti-Pebble drive – and possibly even Parker’s idea – sprouted. Trout Unlimited is the first name on Issa’s list.
The first Trout Unlimited event was “Save Bristol Bay Week”, beginning April 1, 2011 in Washington, D.C., with a delegation of Alaska fishermen, state and tribal officials, and students trekking through a series of lobbying visits, bigwig receptions, dinners with chefs serving Bristol Bay salmon, and exclusive high-profile events.
A congressional reception for the delegation was hosted by Senators Mark Begich (D-AK) and Maria Cantwell (D-WA). Sen. Cantwell would later write an impassioned letter to Jackson urging her to use the 404(c) authority – if necessary – to stop the Pebble mine, which swayed some lawmakers to oppose a bill by Alaska’s Rep. Don Young designed to strip the authority from the EPA.
Former Supreme Court Justice Sandra Day O’Connor, an avid fly-fishing devotee, hosted an invitation-only reception to bolster opposition to Pebble, said National Review. O’Connor would open for the headline act: EPA Administrator Lisa Perez Jackson, followed by Interior Secretary Ken Salazar.
Groups attending included Natural Resources Defense Council (2010 revenue: $99.6 million), Earthworks ($2.3 million), National Parks Conservation Association ($38.9 million) and Trout Unlimited ($26.6 million) – the Gordon and Betty Moore Foundation gave Trout Unlimited $2.6 million specifically to stop Pebble mine.
The fact that these groups were in a closed-door session with Lisa Jackson told insiders that the fix was in. She wanted supreme power, and they wanted it for her.
Shortly before the salmon hoopla in Washington began, Trout Unlimited hired a new public relations and lobbying firm, the Seattle-based Strategies 360 (run by high-profile CEO Ron Dotzauer, a political talent of exceptional influence.) He ran Sen. Maria Cantwell’s election campaigns “in all of her races since the mid-1980s,” according to a Seattle Times story.
The story goes on to say, “When Dotzauer opened his consulting firm in 1985, Cantwell, then in her mid-20s, was his first employee. They began dating, and they continued a relationship after she was elected to the Legislature in 1986.”
Sound Politics, a Seattle blog operated by gadfly Stefan Sharkansky, ran a 2006 item headlined, “Maria Cantwell was the ‘other woman’ in lobbyist’s divorce,” citing court records of that 1985 divorce confirming that Dotzauer was the “lobbyist” and a “Maria” was “the other woman.” Cantwell was a sitting state legislator at the time, and the testimony was given by Ron and Angela Dotzauer’s family counselor, who declined to give “Maria’s” last name for confidentiality reasons.
So, we could draw a path from the Moore Foundation to Trout Unlimited to Strategies 360 / Ron Dotzauer to Sen. Maria Cantwell to Lisa Jackson to an unlawful watershed study to an unlawful permit denial.
The sprawling campaign against Pebble mine is one of the most transparently self-interested and dollar-intensive in Big Green history. Yet it’s only a test bed to inflate EPA’s total regulatory authority far beyond the clear intent of Congress.
It never ends. Power lust scoffs at bounds. On May 10, when Issa and Jordan’s oversight letter was dated, and before the EPA released its Bristol Bay watershed assessment, environmentalists predictably began calling on the agency to conduct a similar assessment of mining activity in the Great Lakes region. The Bristol Bay study “is comparable to what we’d like to see” in the Great Lakes, National Wildlife Federation attorney Michelle Halley said, according to InsideEPA.com.
This journey into the innards of EPA abuse is necessarily long. If it prompts you to any kind of action, whether it be signing a petition, telling a friend, or forwarding it to your social media contacts, I believe it will be worth the reading time, and – God willing – help stem the power of our most dangerous bureaucrats.
Read the entire Issa and Jordan oversight letter to EPA Administrator Jackson
Ron Arnold is an author, a weekly columnist with the Washington Examiner, and executive vice president of the Center for the Defense of Free Enterprise.
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