EPA Plans To Skew Permit Appeals To Aid Polluters

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For Immediate Release: Jul 12, 2019
Contact: Kirsten Stade (202) 265-7337

Ability of Affected Communities to Appeal Permits on Chopping Block

Washington, DC — An obscure but important arm of the U.S. Environmental Protection Agency is slated for withering revisions, according to Public Employees for Environmental Responsibility (PEER).  Under proposed regulations being considered by EPA, only industry and other permit holders would be able to file administrative appeals on new permits, shutting the door to states, aggrieved neighbors and communities, as well as conservation groups. 

The proposed changes would significantly limit the functioning of EPA’s 25-year old Environmental Appeals Board. In a move dictated by EPA political appointees in its Headquarters, the EAB would be stripped of its ability to hear appeals of permits, except as lodged by the industrial operator. This would give industry the ability to freeze attempts to tighten permit requirements since no new permit would go into effect while an appeal was pending. The changes if implemented would also – 

  • Weaken clean air protections for parks, wilderness, and other natural areas from degradation by nearby powerplants or other pollution sources; 
  • Undercut environmental justice safeguards for poor or minority areas suffering from disproportionate pollution impacts. Under the plan, these low-income communities would be forced to file a federal lawsuit to protect themselves; and  
  • Remove the ability of the EAB to overrule EPA legal positions, nor could the EAB review permits on its own motion, except as requested by industry. 

“These changes would allow polluters to better game the system to the detriment of public health and the environment,” stated PEER Executive Director Tim Whitehouse, a former EPA enforcement attorney, noting that the EAB members and staff are civil servants, not political appointees. “This would remove another layer of professionalism countering nakedly political manipulation of the administration of core environmental statutes aimed at ensuring clean air and water.” 

One big winner of this proposal would be the oil and gas industry. The EAB has ruled in favor of petitioners in full or in part in two recent cases: Muskegon Development Company, an environmental justice challenge to a permit allowing underground well injections for enhanced oil and gas extraction; and in 2016, where PEER won new restrictions on surface discharge of fracking fluids from drilling operations on a Wyoming Indian reservation. In addition, the proposed rule would affect appeals like the pending case Jordon Development Company, in which petitioners are challenging an EPA permit authorizing the injection of brine from oil and gas drilling into a well in Gladwin County, Michigan. 

 “EPA is considering closing a critical avenue of communication with communities,” added Whitehouse, noting that the EAB decided 578 permit appeals, principally involving permits issued under the Clean Water and Clean Air Act, in the past 26 years, with less than 1% of final EAB decisions reversed by court review. “Gutting the Environmental Appeals Board is a classic example of foisting a fix on an institution that is not broken.” 

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