Pebble Project win tickles funny bone

Recently, in litigation pending before the federal district court in Anchorage, the Pebble Project withstood an attack seeking to defeat the project's opposition to what may be called the Massacre of 2012. When the U.S. Environmental Protection Agency promulgated its Bristol Bay Watershed study under the theoretical authority of Section 404(c) of the Clean Water Act, it was immediately criticized on the grounds that the report was generated on the basis of advice from certain biased Green NGOs or "GreNGOs" (not to be confused with gringos - North Americans who cannot speak Spanish fluently).

Plaintiff Pebble Limited Partnership sought a preliminary injunction claiming, among other things, that EPA violated the Federal Advisory Committee Act of 1972 (FACA). The court granted the preliminary injunction, concluding that Pebble had "a fair chance of success on the merits" because a subgroup of EPA's "Inter-Governmental Technical Team" did not include opposed points of view as required by FACA.

FACA was adopted during the dark days of the Nixon Administration when the White House had to deal with an unruly Congress, in response to a problem perceived by the ultra-left. Essentially, they claimed that the regulations and guidelines being promulgated by the Executive Branch were developed in "smoke-filled rooms" by business interests who were not giving sufficient deference to the points of view of Grengos and others.

It is no small irony that, now that the ultra-left has grasped the reins of government, the shoe is quite on the other foot. The rooms where decisions are made are undoubtedly still smoke-filled (although tobacco probably isn't the source), and the objectives are still the same - stifle dissent and force a point of view on those not present.

Of course, the Grengos are riding roughshod over the system that they and their ilk spent a great deal of time developing. When it is in their interest to demand that due process be served, they are all over that; but when it appears that business or industry may actually get permission to do something, they are in court challenging the very decisions that the infrastructure they created has made.

In one sense, it may be argued that the abuse of section 404(c) is a new turn of the screw; however, when it comes to Mad Science, it is not surprising that Grengos can find something in the law to suit their objectives. Section 404(c) was placed in the act when it was first drafted and has remained dormant for roughly 40 years. It was adopted the same year that FACA was signed into law. There are many similar traps for the unwary in the law sitting out there waiting to be exploited by dedicated and creative people.

One must acknowledge that when the Clean Water Act was amended in 1972, there were serious problems with the nation's waters. Rivers and lakes were polluted to an extreme. The EPA was created to address a special need and was afforded extraordinary powers and protections to accomplish that mission. One of those powers was the authority to override decisions by the U.S. Army Corps of Engineers under Section 404. It was a fail-safe, just as FACA was.

There can be little doubt, however, that EPA has taken its authority beyond the reasonable limit in many ways, especially during the past several years as the current administration has staffed this agency with immoderates and extremists. As we look down the barrel of two more Obama years, more draconian initiatives may reasonably be expected.

Although EPA's use of Section 404(c) may be somewhat novel for so long as people committed to the vitiation of basic industry in the United States have their hand on the throttle, it is likely there will be more similar efforts at sabotage. As in the case of this preliminary injunction, hopefully the courts will find the way to factor reason into the equation.