After river disaster, is it time to re-evaluate EPA?

[August 17, 2015]  By Rob Nikolewski

Exxon had its Valdez, BP had its Deepwater Horizon and now the U.S. Environmental Protection Agency has its Animas River disaster with which to contend.

After river disaster, is it time to re-evaluate EPA?

By Rob Nikolewski / August 14, 2015 / 8 Comments

Print This Article
Photo from the U.S. Environmental Protection Agency
Photo from the U.S. Environmental Protection Agency
EPA DISASTER: An estimated 3 million gallons of pollutants spilled into the Animas River after an EPA reclamation project was botched.
Exxon had its Valdez, BP had its Deepwater Horizon and now the U.S. Environmental Protection Agency has its Animas River disaster with which to contend.

The federal agency ensured with safeguarding the nation’s ecosystems is facing a barrage of criticism and charges of double standards after millions of gallons of toxic sludge containing cadmium, lead, arsenic and mercury spilled into the Animas River after an EPA backhoe accidentally punched a hole into a waste pit during a clean-up effort at an abandoned gold mine in Colorado.

“Nobody is going to take the attention away from EPA’s incompetence on this,” Sen. Cory Gardner, R-Colorado, told the Wall Street Journal. “If this was a private company, all hell would be breaking loose.”

Nicolas Loris is an economist who focuses on energy, environmental and regulatory issues for the Heritage Foundation, a conservative think tank that has been critical of EPA.

“They’re heavy-handed with their fines to an extent that it prohibits economic development and when you have something like this that’s their own fault, obviously the efforts to identify the problem and clean it up as efficiently and as swiftly as possible have been negligent,” Loris told Watchdog.org.

But Loris emphasized his larger question in the wake of the Animas River disaster centers less on EPA’s initial response and more on the agency’s reason for existing, some 45 years after it was created.

“That’s really what’s at the heart of the matter,” Loris said in a telephone interview. “Transitioning away from the federal government and devolving most of those decisions down to the states.

“There are just too many times the federal government and EPA are placing more stringent air quality standards that produce diminishing marginal returns that are almost to a vanishing point. Whether it’s new ozone standards, the Clean Power Plan regulations for climate change all are going to cost the economy a great deal of money in terms of higher prices, higher compliance costs, lost jobs and less gross domestic product — all for minimal or negligible environmental benefits.”

But can states really take on greater environmental responsibilities?

“The states have shown they do care about their own backyards,” Loris said. “People don’t want to pollute their own property. States don’t want to do so either. That’s not to say there aren’t cross-border issues but that can be dealt with between states and through a federal arbitrator. So I don’t necessarily think that returning the power to the states will result in environmental degradation. Just the opposite. I think states are better equipped to customize policies for the local conditions of their states.”

TOXIC SPILL: EPA originally estimated that 1 million gallons of chemicals such as cadmium and arsenic were accidentally released into the Animas River but later estimates said 3 million gallons were leaked.
Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law, vehemently disagrees.
 

“The idea that environmental regulation can be devolved to the states is frankly ludicrous as an across-the-board argument because pollution doesn’t respect state boundaries,” Revesz told Watchdog.org. “States left to their own devices will not and cannot regulate pollution that has impact on other states. They have no incentive to do that.”

In the meantime, EPA is trying to minimize the damage that’s rolled through Colorado, entered into New Mexico and threatens Utah, Arizona and possibly even the Colorado River that flows into California.

EPA Administrator Gina McCarthy flew into Durango, Colorado, on Wednesday to look at the damage first-hand and promised the agency will take “full responsibility” for the accident that she described as “heartbreaking.”

“My job is to manage the agency and the response and to ensure everyone that we will be fully accountable,” McCarthy said. “Our mission is to protect public health. We will hold ourselves to a higher standard.”

McCarthy said early testing shows the river’s water quality has returned to the level prior to the spill, but Colorado’s attorney general told reporters the long-term contamination effects may take years to determine.

EPA has been blasted on a number of fronts since the the breach occurred Aug. 5, some seven days before McCarthy arrived on the scene.

State officials in New Mexico and Colorado as well as leaders of the Navajo Nation complained that EPA did not notify them of the spill until nearly 24 hours after it happened. A spokesman for New Mexico Gov. Susana Martinez told Watchdog.org the governor’s office first got word of the spill from an Indian tribe instead of EPA.

Related: Two coal ash spills, two very different penalties

In addition, the EPA first reported the spill was estimated at 1 million gallons, but that estimate was way too low. The U.S. Geological Survey reported the leakage to be about 3 million gallons, turning the river into a mustard-colored mess.

“I am very concerned by EPA’s lack of communication and inability to provide accurate information,” said Martinez, a Republican. “One day, the spill is 1 million gallons. The next, it’s 3 million. New Mexicans deserve answers we can rely on.”

“I think we share the anger that something like this could happen,” said Colorado Gov. John Hickenlooper, a Democrat. “But I think that said, our primary role is now: that’s behind us and how are we going to move forward.”

“This is an all too familiar story on the lax oversight responsibility of the U.S. government,” said Navajo Nation President Russell Begaye, who added he had not received a telephone call from President Obama.

“It seems like the Obama administration just closed their doors and disappeared,” Begaye told Associated Press.

The Audubon Society has placed a petition on its website, calling on EPA to “commit immediate and long-term resources for cleaning up and monitoring of all rivers affected by the mine spill.”

But while EPA, through the Department of Justice, issued record fines to private companies such as Exxon and BP in the aftermath of their disasters, it appears that under the common law rule of “sovereign immunity” the agency is protected from fines.

“The government doesn’t fine itself,” Thomas L. Sansonetti, former assistant attorney general for the Justice Department’s division of environment and natural resources, told the Washington Times. “The EPA does not fine itself the way that you would fine an outside company like BP.”

ACCIDENT SCENE: An EPA cleanup crew accidentally breached the pit of an abandoned gold mine in Colorado August 5.
Watchdog.org emailed questions to EPA headquarters in Washington, D.C., asking for comment on charges the agency employs a double-standard — one for private companies and another for itself — but did not receive a response.

Colorado’s attorney general said Wednesday a lawsuit against EPA “is certainly on the table.”

“The statements by the (EPA’s administrator) indicate the EPA is accepting responsibility for the accident,” said Colorado AG Cynthia Coffman, a Republican. “The question is: What does that mean? What does accepting responsibility mean?”

Coffman, along with the attorneys general of New Mexico and Utah, say they are trying to set up a face-to-face meeting with McCarthy.

“While the spill is very important and something that’s pressing and needs to be clean up, it speaks to a very big problem that the federal government is outdated and outmoded to handle the environmental challenges that the United States will deal with in the future,” Loris said. “That’s what the principles of environmental policy should be about — improving the environment and not just checking a box and putting in these regulations.”

“I think to look at a single, isolated event on something that went wrong and to say it’s an argument for an across the board re-evaluation of policy that has been in place for 45 years is wrong,” Revesz said in a telephone interview. “I’m sure we could find many cases in which states are responsible for various actions where things went wrong.”