Last Friday, I testified at a House Committee on Natural Resources subcommittee hearing on the Spruce Mine in Logan County, West Virginia, and the impact the EPA’s retroactive veto of Clean Water Act permits for that project had on manufacturers.  EPA’s 2011 decision to renege on Spruce Mine’s validly-issued 2007 permit sent shock waves through a wide range of manufacturing sectors, who receive 60,000 of these permits each year and condition $220 billion worth of investment annually on issuance of these permits.

My testimony addressed the uncertainty the EPA’s after-the-fact veto could have caused for manufacturers had it not been vacated by a federal court two months ago.  I also discussed EPA’s broader water policy agenda and the concerns manufacturers have with some of EPA’s more recent Clean Water Act regulations and guidance.  A copy of my testimony can be found here.

Ross Eisenberg is vice president of energy and resources policy, National Association of Manufacturers.

NAM VP NAM Vice President of Energy and Resources Policy Ross Eisenberg testifies at House Committee on Natural Resources subcommittee.

Sen. Joe Manchin (D-WV) made his maiden speech on the floor of the Senate on Thursday, extolling the virtues of common sense and, as a logical corollary, laying into the Environmental Protection Agency. He said:

I believe it is fundamentally wrong for any bureaucratic agency, including the EPA, to regulate what has not been legislated, to have absolute power to change the rules at the end of the game and to revoke a permit, as the EPA did in southern West Virginia’s Spruce Mine, after it was lawfully granted and employees were hired. Giving any agency such absolute power will have a chilling effect on investment and job creation far beyond West Virginia.

Manchin announce introduction of the EPA Fair Play Act, intended “to check EPA’s power, protect jobs and investments in West Virginia and beyond” by preventing the agency from revoking permits that had been legally granted.

The permit for the Spruce Mine was approved after an exhaustive, approximately 10-year regulatory process that included extensive review by the EPA. The U.S. Army Corps of Engineers awarded the Section 404(c) permit, which is a requirement for constructing clean valley fills, a process used in surface coal mining. The EPA has authority under the Clean Water Act to veto Section 404(c) permits before they are awarded by the U.S. Army Corps. However, the EPA has never before attempted to veto a previously awarded and active permit.

Arch Coal was poised to invest $250 million dollars in the Spruce Mine project, which was already employing West Virginians and would have created approximately 200 good-paying jobs with benefits. The EPA’s decision to retroactively veto the permit casts serious doubt on the future of this project and others throughout the country.

Sen. Manchin’s legislation has bipartisan support from other energy-state Senators, although the principle embraced by the bill is larger than coal or mining. It goes to the fundamental rule of law in the country: Can the government arbitrarily take away what was already achieved through a legal process for political or arbitrary reasons?

UPDATE (8:20 a.m.): The bill is S. 272, A bill to amend the Federal Water Pollution Control Act to clarify and confirm the authority of the Environmental Protection Agency to deny or restrict the use of defined areas as disposal sites for the discharge of dredged or fill material. Original osponsors are: (continue reading…)