Voices of Alaska: Regulatory Fairness Act sets reasonable timeframe for EPA vetoes

  • By Sen. Lisa Murkowski
  • Saturday, May 3, 2014 6:30pm
  • Opinion

What would Alaskans say if a federal agency retroactively vetoed permits for development of Prudhoe Bay, declaring it never should have been allowed on the North Slope?

What would we think if a federal agency unilaterally banned development in the non-wilderness portion of ANWR?

And what if a federal agency halted efforts to reopen the Nikiski LNG terminal, without any right of appeal, because a tiny portion of the property was once considered wetlands?

While these scenarios might have once seemed far-fetched, all of them – and more – will be possible if the dramatic expansion of EPA’s power under the Clean Water Act continues unchecked.

At issue is Section 404(c) of that law, relating to permits for projects that generate dredge or fill material. Through it, EPA may restrict or deny the placement of materials at sites specified in permit applications submitted to the Army Corps of Engineers.

Before the Obama administration, EPA invoked its veto authority just 12 times, and only after formal environmental reviews had been conducted. With thousands of permits sought each year, this represented a track record of judicious use. But recently, we have seen an abrupt departure from that approach.

In 2011, EPA retroactively vetoed a permit that had been issued in West Virginia four years earlier. In Alaska, EPA appears poised to issue its first-ever preemptive veto, even before a final plan for development is presented.

This comes on top of our near-constant disputes with EPA over resource development. To name just a few examples, we have repeatedly seen the agency seek to delay or halt development in NPR-A, near the Tanana River, at Kensington, at Usibelli, and in the offshore Arctic.

EPA’s cumulative actions, both in Alaska and elsewhere, led me to cosponsor S. 2156, the Regulatory Fairness Act. Authored by a Republican from Louisiana and a Democrat from West Virginia, this bill would help restore due process for project developers and restore their confidence – eroded during the Obama Administration – that federal permitting process will be timely, predictable, and fair.

This bipartisan measure does not eliminate EPA’s veto power or prohibit the protection of any lands and waters. It does not make it easier for a project to win approval, or weaken the environmental review process that major projects must undergo.

Instead, the bill establishes a reasonable and reliable timeframe for EPA to issue any vetoes it determines necessary. The agency will still be allowed to take those actions during the permitting process, just as it did during prior administrations.

If Congress does nothing, EPA will hold effectively limitless veto power. The agency will be capable of rejecting projects before they even seek permits or clawing back permits for projects that already have them. As project developers realize they cannot count on a fair process, or the long-term validity of any permit they may acquire, investment in our state and country will plummet.

I have great respect for the people of Bristol Bay. For me, fishing is part of being Alaskan. My sons have worked in the Bristol Bay sockeye fisheries, I have fished many times in the region, and throughout my career I have demonstrated my steadfast support for subsistence, recreational, and commercial fisheries in our state. I understand and agree with many of the concerns raised about the potential Pebble mine. That’s why I have reserved judgment on it – and why I am committed to the full protection of the world-class fisheries in the area.

But a preemptive veto is not the best or only way to achieve that goal. It is important to keep in mind that EPA has full authority to deny permits during its review process, when it will also be possible to assess specific impacts. EPA Administrator Gina McCarthy confirmed that to me just a few weeks ago, and that authority would not change under the Regulatory Fairness Act.

U.S. Sen. Lisa Murkowski is Alaska’s senior Senator and the ranking Republican on the Senate Energy and Natural Resources Committee.

More in Opinion

This image available under the Creative Commons license shows the outline of the state of Alaska filled with the pattern of the state flag.
Opinion: Bringing broadband to all Alaskans

Too many Alaskans face barriers accessing the internet.

This photo shows a stack of pocket constitutions at the Alaska State Capitol. (Peter Segall / Juneau Empire File)
Opinion: Join us in voting against a constitutional convention

Voting no on a constitutional convention is vital to the well-being and stability of our state.

Michael O’Meara.
Point of View: Tell BOEM how you feel

It seems like BOEM should prioritize input from people most likely to be affected if leases are sold

The State of Alaska, Department of Administration, Office of Information Technology webpage. (Screenshot/oit.alaska.gov)
Cloud migration now underway will strengthen, enhance State IT systems

At the most basic level, cloud computing is the delivery of computing services remotely

Jessica Cook, left, and Les Gara stand in The Peninsula Clarion’s offices on Thursday, June 30, 2022, in Kenai, Alaska. (Ashlyn O’Hara/Peninsula Clarion)
Alaska Voices: Better schools for a better economy

We need leaders who care about our children’s futures

A resident casts their vote in the regular municipal election Tuesday, Oct. 6, 2020, at the Kenai Peninsula Fairgrounds in Ninilchik, Alaska. (Photo by Megan Pacer/Homer News)
Voices of the Peninsula: This is our borough and city

By Therese Lewandowski Another election already? Yes! This is our local elections… Continue reading

The Alaska Permanent Fund Corporation building is seen in Juneau, Alaska, in March 2022. (Michael S. Lockett / Juneau Empire)
Opinion: APFC keeps steady keel during turbulent year

FY2022 was a challenging year for all investors

Homer Foundation
Point of View: Nonprofits provide essential services not provided by cities

By our count, nonprofits provide more than 100 jobs to our communities

t
Opinion: Don’t get scammed like I nearly did

I should have just turned off the computer.

Kenai Peninsula Borough Mayor Charlie Pierce campaigns for governor as he walks in the 65th annual Soldotna Progress Days Parade on Saturday, July 23, 2022 in Soldotna, Alaska. Pierce resigned as borough mayor effective Sept. 30, 2022, to focus on his gubernatorial campaign. (Ashlyn O’Hara/Peninsula Clarion)
Voices of the Peninsula: ‘It has been an honor to serve’

Borough mayor gives send-off ahead of departure

Gov. Mike Dunleavy announces Friday, July 15, 2022, that 2022 most PFD payments will be distributed on Sept. 20, 2022. (Screenshot)
Opinion: A historic PFD still leaves work to be done

It is important to remember the dividend is not, and has never been, a welfare payment