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

A roll of “I voted” stickers sit at the Alaska Division of Elections office in Juneau in 2022. (Ben Hohenstatt / Juneau Empire File)
Strengthening democracy: Native vote partners to boost voter registration

GOTNV and VPC are partnering to send over 4,000 voter registration applications this month to addresses and P.O. boxes all over Alaska

Hiroko Masuike/The New York Times
Former President Donald Trump arrives at Trump Tower after he was found guilty of all counts in his criminal trial in New York on May 30.
Opinion: Trump’s new fixers

Fixers from Alaska and elsewhere step in after guilty verdict

Ballot booths are set up inside Kenai City Hall on Thursday, Sept. 29, 2022, in Kenai, Alaska. (Ashlyn O’Hara/Peninsula Clarion)
Perspective from an election worker

Here is what I know about our Kenai Peninsula Borough election system

Apayauq Reitan, the first transgender woman to participate in the Iditarod, tells the House Education Committee on March 30, 2023, why she opposes a bill restricting transgender rights. (Mark Sabbatini/Juneau Empire file photo)
Opinion: The imaginary transgender sports crisis

House Bill 183 is a right-wing solution to a problem that doesn’t exist now and never will.

Sen. Jesse Bjorkman, a Nikiski Republican, speaks in favor of overriding a veto of Senate Bill 140 during floor debate of a joint session of the Alaska State Legislature on Monday, March 18, 2024. (Mark Sabbatini / Juneau Empire)
Sen. Jesse Bjorkman: Session ends with budget, dividend and bills passed

Capitol Corner: Legislators report back from Juneau

The Alaska State Capitol. (Clarise Larson / Juneau Empire file photo)
Listen to PAs; support Senate Bill 115: Modernizing PA Practice in Alaska

Health care is rapidly evolving, demanding a more flexible and responsive system

Mount Redoubt can be seen across Cook Inlet from North Kenai Beach on Thursday, July 2, 2022. (Erin Thompson/Peninsula Clarion file photo)
Opinion: Hilcorp Alaska: Powering Southcentral Alaska — past, present and future

Hilcorp Alaska has and will continue to fully develop our Cook Inlet basin leasehold

Sen. Jesse Bjorkman, a Nikiski Republican, speaks in favor of overriding a veto of Senate Bill 140 during floor debate of a joint session of the Alaska State Legislature on Monday, March 18, 2024 (Mark Sabbatini / Juneau Empire)
Sen. Jesse Bjorkman: Collegiality matters

Capitol Corner: Legislators report back from Juneau

Juneau Empire file photo
Larry Persily.
Opinion: Alaska might as well embrace the past

The governor, legislators, municipal officials and business leaders are worried that the Railbelt will run short of natural gas before the end of the decade

The Alaska State Capitol on March 1. (Ashlyn O’Hara/Peninsula Clarion)
Opinion: Physicians oppose Alaska Senate Bill 115 — Independent Practice for PAs

Alaskans don’t want access to just any health care, they want access to high quality care

Norm McDonald is the deputy director of Fire Protection for the Alaska Division of Forestry & Fire Protection. (Photo courtesy Bureau of Land Management Alaska Fire Service)
The Swan Lake Fire can be seen from above on Monday, Aug. 26, 2019, on the Kenai Peninsula, Alaska. (Photo courtesy Alaska Wildland Fire Information)
Opinion: This wildfire prevention month, reflect on ways to protect each other and our communities from wildfire

Alaskans saw what happened in Canada last year, and they know it can happen here too