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Alaska AG says EPA's actions 'unlawful'

By Michael P. Tremoglie | Apr 30, 2012


JUNEAU, Alaska (Legal Newsline) - Alaska Attorney General Michael Geraghty has joined the chorus of those condemning the conduct of the Obama administration's Environmental Protection Agency.

It is a chorus that has grown exponentially during the past few months. This time the motive is what is being called a preemptive action by the EPA to deny a mining permit without cause.

Geraghty wrote a letter March 9 to the administrator of EPA's Region 10 to express his concern -- and the concerns of other state departments -- about the EPA's Bristol Bay Watershed Assessment for a Section 404 permit.

The permit allows discharge of dredge or fill material into the nation's waters - including wetlands. It is needed in the event that a contemplated mining operation is actually proposed in the Bristol Bay area, Geraghty says.

Environmentalists don't want the mine. They claim the mining operation would destroy a pristine area which contains a salmon and herring fishing area vital to Native Americans living there.

But the Alaska AG wants the EPA to cease its work. He is also asking that the EPA refrain from any actions until a Section 404 permit application has been submitted and other applicable regulatory reviews are conducted.

According to the letter, "The EPA initiated the assessment to inform its decision­making on a May 2, 2010 petition asking EPA to invoke its Clean Water Act (CWA) Section 404(c) authority. The petition asks EPA to prohibit the disposal of fill in Watersheds near Bristol Bay in which large mine development may occur in the future. Neither a petition process nor EPA's process for developing a response are described in the CWA or its associated regulations."

If the EPA denies Section 404 approval, the mining operation would not be permitted. What concerns the attorney general is that there has not been an application process for a mining operation proposal yet, so the EPA's assessment is premature.

Geraghty wrote, "Both the EPA's watershed assessment and its potential exercise of its 404(c) veto authority in the absence of an actual Section 404 permit application are premature and unprecedented."

He also said, "EPA's watershed assessment effort reaches well beyond any process or authority contemplated by the CWA."

Geraghty listed several objections to the EPA's assessment in addition to it being premature. He noted that the EPA lacked the authority to do this assessment. EPA's rationale of conducting the assessment of the effects of a hypothetical mining operation exceeds its authority. He also alleges that it conflicts with federal and state law, lacks scientific credibility and violates state and private mineral rights.

The Obama EPA has been the target of intense criticism from friend and foe alike these past few years. The invective has been ratcheted up a few notches the past few months.

Government Inspector Generals, U.S. Senators and Congressional Representatives from both sides of the aisle, as well as private business groups, businesses, state governors and legislators have all condemned the EPA. Various federal judges - including Supreme Court Justices - have described the EPA's conduct as "outrageous" or "exceeding its authority."

The U.S. Court of Appeals for the Fifth Circuit said March 26 that "the EPA had no legal basis" to issue the ruling it did. It characterized EPA's legal motives as being "created out of whole cloth."

Geraghty's letter seems to adhere exactly to the sense many now have that the EPA is becoming a rogue government department intent on usurping authority. As he wrote in his letter, "We believe that EPA's actions in using the Watershed assessment to address the pending petition are unlawfully preemptive, premature, arbitrary, capricious and vague."

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