Category Archives: EPA

Renewable Fuel Standard, or Not?

12 Friday Feb 2016

Posted by in Energy & Environment, EPA, Ethanol, Government, Renewable Fuels Mandates, Uncategorized

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The Renewable Fuels Standard (RFS) provisions of The Energy Independence and Security Act of 2007 (EISA), mandates an increasing blend of renewable products into our domestic fuel supply. The law amends the Clean Air Act, and allows for an initial blending of food-based ethanol (corn), beginning in 2008. In subsequent years, the blend was to transition towards satisfying the annually increasing volumes with non-food “second stage” cellulosic ethanol, referred to as RFS2. The cellulosic, or advanced biofuels, are derived from biological materials such as wood shavings, leaves, corn cobs and grasses. In addition to the blend provisions, the law requires the program to achieve a 20% reduction in greenhouse gas emissions. Unfortunately, the costly experiment has failed to meet several goals, including air quality and the defined blend requirements.

To explain, in 2008 Congress mandated the EPA to set the RFS at a 10% blend of corn ethanol. Drivers then began to see labels informing them of E10 in fuel pumps. By 2010, the law states we were to move towards the use of non-food products (the second-stage RFS2), to fill the increasing blend requirements. However, in 2010 and 2011, no cellulosic biofuel was available to fill the volume requirements. Similarly, in 2012 and 2013 the available production did not amount to 1% of the mandated levels. As a result, the EPA adjusted the blend formulas allowing for first stage corn-based ethanol to fill the void.

In 2011, the EPA approved the blend increase to E15 (15% ethanol). An increase mandated to include cellulosic renewables (non-food) as opposed to corn. Now, several years into the program, cellulosic biofuels are still not available. Nevertheless, the EPA should not continue to adjust the volumes between ethanol and biofuels. It was at the onset of the program in 2007 that the Department of Energy (DOE), assured the taxpayers cellulosic ethanol would be ready and cost competitive with gasoline by the year 2012. Again, yet another goal the program failed to meet. Incidentally, that promise accompanied an astounding $385 million federal investment in six privately owned plants.

Unfortunately, at this time technological realities and market fundamentals simply do not support large-scale production of cellulosic biofuels and the industry is not near capable of meeting the RFS2 mandates. The creation of a law does not guarantee that science and economics will cooperate. As we look at the legal requirements and limits of alternative fuels made from wood chips and corn cobs, one thing is wholly apparent. We can’t get there from here.

So then, where are we? In regards to the ethanol mandate, we are quite possibly near the end. It was a poorly drafted piece of legislation that is not sustainable without government backing. Aside from corn farmers and their lobbyist, there is little support for continuing the project. Unfortunately, and unavoidably, the same corn farmers who benefited from the program will suffer the greatest financial impact upon its demise.

– See more at: http://environmentblog.ncpa.org/renewable-fuel-standard-mandates-or-not/#sthash.RStlFs7h.dpuf

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“Green” Energy: The Color of Money

15 Tuesday Dec 2015

Posted by in Agency, Congress, Energy & Environment, EPA, Government, Government Accountability Office (GAO), Office of Inspector General (OIG), Renewable Fuels Mandates, Uncategorized

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In light of the recent legal filing for creditor protection by Spain-based, Abengoa, Inc., the viability of the Renewable Fuel Standard (RFS) is getting appropriate scrutiny and reconsideration. Through that program, the giant green-energy company received billions of U.S. taxpayer dollars in grants, loans, and subsidies. Still, last week they were forced to close their cellulosic ethanol facility in Hugoton, Kansas. The court filing for creditor protection came the day before Thanksgiving and within a week, the Kansas employees received layoff notices while many creditors received nothing.

Economic predictions suggest taxpayer losses could amount to five-times that of the 2011 Solyndra collapse. For local farmers, $5 million in unpaid, delivered product prompted their cooperative (CHS, Inc.), to file a lawsuit just two days prior to Abengoa filing for protection in a Spanish court. While some articles and blogs appear to revel in an Obama administration failure, others denounce the fact-based reporting of Abengoa’s troubles as a hit-piece against green-energy. Neither position is accurate, valid or productive.

From a free-market, smaller government perspective, the issue is not green-energy versus traditional energy sources. There is no denying the world would be a better place if everyone had access to affordable, renewable clean energy. But, consider the financial sink-hole that is the Hugoton plant and contrast that with the stunning announcement that it has sold zero gallons of cellulosic ethanol, and it is apparent that to some the label of “green” energy denotes big money as opposed to an emphasis on low environmental impact.

It should be noted that Abengoa’s demise was not a shock to everyone. Various sources have been sounding the warning sirens for years.

  • A 2009 Government Accountability Office (GAO) report warned of multiple challenges to RFS’s increasing volumes of biofuels, particularly cellulosic.
  • November 2011: Senator Jeff Sessions of the Senate Budget Committee specifically requested all documents relating to Abengoa and other solar companies from the Department of Interior (DOI).
  • 2012 GAO letter to The Honorable Dianne Feinstein, and House & Senate members of the Subcommittee on Energy and Water Development, Committee on Appropriations stating it was the sixth time GAO had reported its concerns about (DOE) loan guarantees for biofuels.
  • March 2012 GAO report to Congress restating concerns about the lack of adequate review and oversight by DOE and its $30 billion loan program, detailing Abengoa as the recipient of $1.2 billion.
  • March 2012: U.S. House Oversight Committee report specifically finds loans and resources granted to Abengoa, created excessive risk. The report reveals that “Abengoa managed to obtain a DOE loan commitment for the lowest rated project across the entire DOE Junk portfolio — which received an extraordinarily low CCC rating and was still approved by DOE for a direct loan to the project. This overinvestment in this single firm will likely cause substantial harm to the taxpayer.”
  • May 29, 2012: Letter from the U.S. House Oversight Committee threatened the Department of Interior (DOI) with “compulsory action” if they failed to release requested documents related to Abengoa and other solar companies. The Committee stated appearance of preferential treatment in taxpayer-funded loan guarantees.
  • April 30, 2013: Office of Inspector General (OIG) reported Abengoa of received $2 million dollars through The American Recovery and Reinvestment Act of 2009 (Recovery Act) for a project completed before the passing of the law.
  • May 1, 2014: GAO warned a significant threat to taxpayers in the DOE biofuels loan programs due to poor oversight and deviation from monitoring and qualifying procedures that, “pose an unacceptable risk of default.”

Highlighted above are but a few examples of serious problems with the government’s renewable fuels program. So, as presented, critics are not opposed to the concept of green energy but see the RFS as a seriously flawed mechanism to that end. The wasting of billions of dollars on infrastructure for a product that is not market ready could be better served funding advancing research projects in laboratories. The simple concept of putting the cart before the horse comes to mind. It is not Capitalism when the Federal government, through sheer financial force develops unsustainable, artificial industries.

Even Abengoa knew the Kansas plant would not be self-sustainable. In a 2014 report to DOE, the company presented their risk mitigation plan. The list included a push for the development of “energy crops”, continued dependence on the RFS to maintain a premium for ethanol, and to encourage the USDA to allow farmers to produce cellulosic biofuel crops on Conservation Reserve Program (CRP) lands.

The Abengoa plan does not reflect the goal of eventual self-sufficiency, but instead, details what others may contribute to help restructure market fundamentals to suit Abengoa’s projected goals. That is not capitalism. We have limited lands for food production, and the thought of more farmland to biofuel production is alarming. Also, the move would defeat one of the RFS stated goals of developing renewable energy by utilizing material currently identified as low valued waste or by-products.

To be clear, green-energy, as in renewable, eco-friendly, sustainable, and affordable, is a national security and humanitarian issue. There is little debate about the need to pursue that end. But, the government mandates and financial handouts created extremely provocative incentives to abuse the U.S. taxpayers. Through big dollar, experimental programs that ignore market impact and economic viability, coupled with extremely lax oversight, the term “green-energy” takes on a different meaning.

– See more at: http://environmentblog.ncpa.org/green-energy-the-color-of-money/#sthash.SjW9Htzf.dpuf

USDA and States to Spend $210 Million on Fuel Pumps

04 Wednesday Nov 2015

Posted by in Agency, Energy & Environment, EPA, Ethanol, Government, Renewable Fuels Mandates, Uncategorized

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On May 29th, the United States Department of Agriculture (USDA) announced $100 million in grants offered through their Biofuel Infrastructure Partnership (BIP) program. According to Secretary of Agriculture Tom Vilsack, the move is to make renewable fuel options more available to American consumers. The program is a 1:1 partnership with states to build fueling stations and purchase blender pumps for E15 and higher. The preliminary spending tally estimates $210 million for 5,000 pumps at 1,400 fueling stations in 21 states.Blenderpumps

This latest money toss is yet another multi-million dollar outlay resulting from the Renewable Fuel Standard (RFS), as mandated by the 2007 Energy Independence and Security Act (EISA). The mandate requires gasoline to be blended with renewable fuel sources at incremental increasing levels.

The original RFS mandated level was 10% ethanol or E-10. The next mandated level, 15% ethanol or E-15, is a blend level the ethanol or E-10. The next mandated level, 15% ethanol or E-15, is a blend level the EPA labels to be used only in Flex-fuel passenger vehicles, model years 2001 gascapand newer. The label goes on to state, “Do not use in other vehicles, boats, or gasoline-powered equipment. It may cause damage and is prohibited by Federal law”. Still, the EPA wants to make even higher blend levels available, even if that means taxpayers are to fund the necessary infrastructure.

Unlike the traditional pumps where a consumer makes the fuel choice of diesel, unleaded, or octane levels, the government has decided to fund blender pumps offering a choice between ethanol or, even more ethanol. Even though the overwhelming preference of consumers, environmentalist, economists, most ag sectors, and automakers is E-0, an option not found on the new pumps.

Though extensive studies with science-based evidence prove the damage ethanol contributes to the environment and engines, along with the real damage to a market-based economy, federal agencies continue to dig deeper into the ethanol quagmire. Even the Government Accountability Office (GAO) found the RFS costs outweighed its benefits and criticized the EPA’s economic analysis of the RFS as intentionally misleading. In a 2014 report to Congress, the GAO exposed the agency’s false reporting of the program’s costs stating, “EPA estimated net benefits of the mandated volumes ranging from $13 to $26 billion.” However, the EPA did not include the infrastructure costs (such as this latest $100 million) in their calculations. An expense the EPA estimates to total an astounding $90.5 billion.

– See more at: http://environmentblog.ncpa.org/usda-and-states-to-spend-210-million-on-fuel-pumps/#sthash.2OaslViA.dpuf

OIG Announces Probe of EPA’s Reporting Practices on Biofuel Impact

26 Monday Oct 2015

Posted by in Agency, EPA, Government, Office of Inspector General (OIG), Renewable Fuels Mandates, Uncategorized

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The Office of Inspector General (OIG) has announced a probe into the Environmental Protection Agency’s (EPA) adherence to reporting requirements regarding biofuel’s impact on air quality. Under the Renewable Fuel Standards (RFS), the EPA is to submit to Congress a science-based triennial report on the effect of the controversial program.

As a result of the Energy Independence and Security Act of 2007 (EISA), changes were made to the Renewable Fuel Standard program (RFS), the program that mandates the blending of ethanol with petroleum-based fuels for domestic use. The law directs the Environmental Protection Agency (EPA) to analyze lifecycle greenhouse gas (GHG) emissions from the increased use of renewable fuels in comparison with petroleum-based fuels.

The Clean Air Act (CAA), defines the term “lifecycle greenhouse gas emissions” as the GHG impact from all emissions including land use changes and other activities. The law requires EPA’s report to include,

“…all stages of production of fuel and feedstock and distribution, from feedstock generation or extraction through the distribution and delivery and use of the finished fuel to the ultimate consumer, where the mass values for all greenhouse gases are adjusted to account for their relative global warming potential.”

According to the OIG’s announcement, the goal of the review is to determine the following;

  1. Whether the EPA has complied with the law on reporting requirements of the Clean Air Act.
  2. If the EPA followed a mandate to amend its previous biofuel’s environmental impact reports to reflect the findings of a 2011 study by the National Academy of Sciences.
  3. If the EPA used the National Academy of Sciences data in subsequent reports.

In preparation for the review the OIG has asked EPA to provide:

  • Triennial Reports to Congress issued after the EPA’s first report in 2011, and any other reports to Congress on the environmental and resource conservation impacts of the RFS program.
  • RFS Antibacksliding Analysis required under Section 211(v) of the Clean Air Act.
  • Documentation of the EPA’s response to the 2011 National Academy of Sciences study and its recommendations.
  • Documented changes or planned future modifications to the RFS regulatory impact analysis or lifecycle analysis based on findings/recommendations from the 2011 National Academy of Sciences study, Triennial Reports to Congress and/or Antibacksliding Analysis (or documentation explaining why no changes were necessary).

The OIG’s investigation comes at a time when the call to cut corn-based ethanol is growing louder. Interestingly, the announcement came one day after the University of Tennessee released results of a comprehensive 10-year review which calls for a restructuring of the RFS program. The Tennessee study concludes, “We have had 10 years under the RFS and a commercially viable, next-generation biofuels technology has not emerged.”

– See more at: http://environmentblog.ncpa.org/oig-announces-probe-of-epas-reporting-practices-on-biofuels-impact/#sthash.TRDihzn8.dpuf

Congressional Request leads to Scathing Review of the EPA

22 Thursday Oct 2015

Posted by in Agency, Energy & Environment, EPA, Government Accountability Office (GAO), Uncategorized

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by: Belinda Silva

Businesses, landowners, and farmers know the feeling of dread that comes with hearing the words “not in compliance” from the U.S. Environmental Protection Agency (EPA). The EPA has earned the reputation of delivering heavy-handed enforcement actions and exorbitant punitive penalties. The agency’s authoritarian over-reach is near legendary, earning them the moniker “rogue agency”. Even the U.S. Supreme Court gave the EPA a dressing-down stating they commonly strong-arm regulated parties into “voluntary compliance” without the opportunity for judicial review. The EPA has taken a firm stance that the rules are published, and therefore, noncompliance is not excusable.

Yet, a congressionally requested federal review of the EPA found the agency regularly ignores rules that pertain to its own operating procedures as dictated by law. In fact, a Government Accountability Office (GAO) report says the EPA disregards the law in its reporting to congressional inquiries. According to the GAO, the EPA’s Science Advisory Board (SAB) is not in compliance with the long-standing Environmental Research, Development and Demonstration Authorization Act of 1978 (ERDDAA). As well, the agency’s Clean Air Scientific Advisory Committee (CASAC) fails to follow legal requirements of the Clean Air Act.

The GAO investigation revealed agency staffers routinely judge whether a congressional request is a policy driven question or requires a science-based response. As a result, answers to lawmaker’s queries often have no scientific basis in fact. Also, the agency failed to perform regular five-year impact reviews of national ambient air quality standards (NAAQS). Under the Clean Air Act, CASAC is to review and report “any adverse public health, welfare, social, economic, or energy effects” resulting from regulations and strategies of NAAQS. According to the GAO, the EPA “has never” instructed CASAC to comply with the federal requirement to review and report.

Members of Congress and the GAO have voiced similar concerns regarding EPA conduct and manner of operational performance.

  • Regularly ignores epidemiological evidence that dispels, counters, or invalidates their decisions.
  • Ignores their own scientific panels to format or propel false alarms.
  • Uses federal law, such as the Clean Water Act, to regulate private lands through regulatory “takings” of rights.
  • Consistently exceeds its legislative authority forcing businesses, municipalities, and citizens to challenge regulations through the court system.
  • Abuses authority in “policing” of private property activity through notoriously heavy fines.
  • Habitually practices “moving the goal” tactics to hamper businesses and industries efforts to remain operationally compliant.

The agency’s standard operating procedures often are in defiance of the law. Also, the arbitrary use of selected and contrived science to establish environmental regulation is a serious threat to our national wellbeing and jeopardizes public health, general welfare, socio-economic conditions and our environment.

– See more at: http://environmentblog.ncpa.org/congressional-request-leads-to-scathing-review-of-the-epa/#sthash.eyxYrxSY.dpuf

The Failure of the U.S. Biofuels Program

15 Tuesday Sep 2015

Posted by in Energy & Environment, EPA, Ethanol, Renewable Fuels Mandates, Uncategorized

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Ending a relationship is never easy, even one with a proven history of broken promises, twisted logic, weak justifications and financial exploitation. Such is the bond between the American taxpayer and the domestic ethanol industry. In the beginning, statements of common goals sparked hopeful enthusiasm. Many eagerly supported the romantic notion of growing our way to energy independence and an American-led green-based movement towards world prosperity. But, alas, the thrill is gone, and the truth exposed. The once proud, almost pompous, biofuels sector is struggling for justification.

The affair began in 2007 with the Energy Independence and Security Act (EISA). Contained within the act is the Renewable Fuel Standard (RFS) provisions that sets forth incentives for the development of biofuels such as plant-based ethanol and biodiesel. At the time, Bush had committed to the goal of ending American’s addiction to fossil fuel. The original promise was a reduced dependency on Middle Eastern oil, cleaner air, a boon to agriculture and reduced fuel costs for consumers.

Unfortunately, ethanol has failed to live up to its promised benefits. Recent low prices at the pump have exposed its life-support dependency on the government. Although direct subsidies have expired, ethanol producers continue to benefit from other financial incentives and federal mandates. A study by the NARC Consulting Group calls the program an economic death-spiral and discloses its many flaws. Yet, industry groups rally for maintaining, even increasing, RFS percentages in the face of mounting evidence of the program’s failure. Still, in a recent rule change proposal, the EPA published a plan to amend the mandates.

The statutory requirement to blend government-supported biofuels with free-market fuels is market manipulation. If the value of ethanol and other biofuels were legitimate, forced consumption, through the RFS, would not be necessary. Congress should end this failed relationship and costly experiment. Let the free market drive innovation and job development. Below, are but a few of the adverse effects of the RFS:

  • disruptive to agriculture markets
  • increases food costs
  • rife with fraud
  • lacks self-sustainability
  • burdens Taxpayers
  • environmental damage
  • violates free-market principles

– See more at: http://environmentblog.ncpa.org/the-failure-of-u-s-biofuels-program/#sthash.DcCdlOEx.dpuf

The Golden-cheeked Warbler and Piecemeal Environmental Policy

25 Tuesday Aug 2015

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A tiny, migratory songbird is causing a big ruckus in Texas. At issue is the Golden-cheeked warbler’s status according to the U.S. Fish and Wildlife Service (FWS). The bird caused a related stir in 1990 when it was the subject of a petition by members of the anarchist environmental group, Earth First! The petition moved the FWS to exercise its emergency authority to declare a species endangered under the 1973 Endangered Species Act (ESA). In December 1990, the agency issued its final rule designating the bird to be an endangered species.

However, a recent comprehensive study has motivated several groups to call for the removal of the golden-cheeked warbler from the list. The findings, as presented by Texas A&M, has been peer reviewed, published in respected journals, and judged as scientifically sound. It appears the golden-cheeked warbler is not endangered. Even more concerning, the species may not have been in peril in 1990, the year FWS declared an emergency protected status.

What does this mean to the hundreds of private property owners who have suffered land restrictions, substantial fines, and criminal prosecution as a result of the warbler’s status? For example, one such case saw a Texas rancher penalized for clearing Ashe Juniper (Cedar) from his property. An activity FWS deemed damaging to the protected bird’s breeding habitat. In a negotiated settlement, the landowner transferred 48 acres to a public preserve and paid $220,260 in land management fees.

Even if one were to believe the earlier, mostly anecdotal based evidence that the golden-cheeked warbler was threatened, the latest research supports its removal from the list of endangered species. Still, some ask since recovery efforts have been so successful, why should the warbler be delisted to face uncertainty?

Simple answer first, the endangered species listing is for species that are, in fact, endangered. To maintain a status that is not evidenced based delegitimizes the significance of the entire list. Second, although there is no geographical designation of warbler habitat, Ashe Juniper (Cedar) trees are recognized as essential to warbler nesting. So, while the bird is a protected species, landowners are subject to restrictions, in what amounts to a regulatory taking of property rights in regards to Ashe junipers.

Finally, the listing of the warbler has caused a clash of agencies, pitting federal against state in a battle of species management. As well, the limited focus on warbler breeding habitat protection has contributed to serious health issues, particularly for children.

To explain, while the FWS strictly enforces habitat (a tree) protection, the Texas Parks and Wildlife Department (TPW) calls the golden-cheeked warbler issue, “A single-species approach to wildlife management“. As a result of federal restrictions, the invasive characteristics of Ashe juniper has negatively impacted the natural ecosystem. According to TPW, in areas where the tree has been left to survive, it has depleted groundwater, increased soil erosion, and impacted the diversity of other plant species. The rise of Ashe juniper, being of little food value, has disrupted the natural habitat of other animal species. In fact, TPW has worked to limit, even eradicate the Ashe juniper while the FWS punishes citizens for clearing the tree from their land.

The increase in Ashe Juniper has also resulted in an upsurge of illness during its pollination cycle. Termed “cedar fever” the effects of Ashe juniper allergies can range from itchy eyes to pneumonia and even trigger asthma attacks. The Ashe juniper tree has one of the most allergenic pollens. In fact, The Asthma and Allergy Foundation of America (AAFA) has named seven Texas cities in its 2015 list of the most challenging places to live in regards to annual pollen scores.

So here we have the question, should the golden-cheeked warbler be removed from the list of endangered species? Yes. If not merely for the logic the bird is not threatened, then for the impact the designation has to other sensitive areas. More consideration should be made to the causal sequence of government agency decisions prior to making rules. Consideration should be given to economic impact to private citizens, potential health issues, and an analysis of the possible harm to other plant and wildlife species. When pondering the importance of diverse species to a healthy environment, too often the human element is not represented in the equation. A more holistic approach would better assure a healthy, balanced ecosystem.

– See more at: http://environmentblog.ncpa.org/the-golden-cheeked-warbler-and-piecemeal-environmental-policy/#sthash.BkBhQBsZ.dpuf

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EPA and Regulatory Taking of Private Property

20 Thursday Aug 2015

Posted by in Agency, Courts, Energy & Environment, EPA, Government, Supreme Court, Uncategorized

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The Fifth Amendment to the U.S. Constitution forbids the government from taking privately owned property without the due process of law, and without just compensation.  However, what constitutes a government taking and can due process be preemptively satisfied by agency regulation?  It seems in the case of wetlands, the EPA has overreached its authority.

Let us first attempt to identify “wetlands”.  According to a comprehensive classification system developed in 1979, a site can be categorized as coastal or inland, yet the classification of wetland is not site-specific.  Instead, wetlands is explained as a hierarchical, progressive structure of connected waters of the state.  In what is termed the Cowardin Classification System, wetlands is an all-encompassing geographical feature.  It consists of linked layers of species and subspecies, soil types and subtypes, an assortment of vegetation, along with various water sources, movements, and duration of presence.  Simply stated, a piece of ground that can receive water (including rain) is part of the system that is “wetlands”.  The Cowardin System, prepared for the U.S. Fish and Wildlife Service, is an impressive, comprehensive report.  Indeed, it has been the de facto standard for EPA employees in assigning a wetlands designation to private property. As a result, EPA’s authority and jurisdiction relating to “Navigable Waters” has multiplied.

As a result, many landowners have lost private property usage and development rights.  Effectively, the property owner has suffered a taking by the federal government.  Such was the case of Mike and Chantell Sackett, an Idaho couple who challenged the EPA’s enforcement actions under §404 (wetlands) of the Clean Water Act (CWA).  In a 2013 decision, the Supreme Court ruled unanimously against the EPA.  In essence, the agency could not deny the Sacketts a hearing to challenge the agency’s use of CWA authority and jurisdiction over their land. The Sacketts successfully argued the EPA violated their constitutional right to due process.  The simple question before the Supreme Court was whether landowners have a right to challenge a legal order of the EPA?  The answer was a resounding 9 to 0  “Yes”.  The EPA worked to preclude the right to judicial review exercising self-assumed authority in designating wetlands. In the majority opinion, Justice Antonin Scalia wrote that the court rejected EPA’s attempt to use the CWA as a blanket fulfillment of due process.  Justice Samuel Alito concurred stating Congress should clarify ambiguities in the CWA.

In the case of Rapanos v. the United States, though the court came to no decision (the parties eventually settled), four Justices spoke against the EPA.  Justice Scalia wrote the EPA’s use of the term “waters of the United States” is an overreach in identification of wetlands.  The concurring Justices agreed.  The court found that occasional, intermittent, or ephemeral water flows may have a hydrological connection.  However, “are not sufficient to qualify a wetland as covered by the CWA; it must have a continuous surface connection”.

Likewise, in Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers, the Court ruled against EPA.  Chief Justice William H. Rehnquist wrote the EPA overreached in its wetland designation of “isolated, abandoned sand and gravel pits with seasonal ponds, which provide migratory bird habitats”.  Both the Rapanos and the SWANCC court opinions counter the Cowardin concept of all waters being connected in one wetlands system.   Such decisions constitute a slap-of-the-hand by the Supreme Court to EPA and offer an opportunity to discuss the ever increasing dominance of the agency over the lives of everyday citizens.

America’s founders designed our government to serve the people.  Increasingly citizens are left with little recourse but to ask the courts to assure their constitutional rights as threatened by dominant government agencies.  The EPA, arguably being one of the most insidious, dictatorial federal agencies.

Fortunately, recent Supreme Court decisions and Justice Alito’s urging that Congress address ambiguities have triggered action by some.  Several Senators have introduced S.980 a bill that attempts to clarify the CWA by explaining waters of the state are “Navigable-in-fact” and is “permanent, standing, or continuously flowing bodies…from streams, oceans, rivers, and lakes and are connected to waters that are navigable-in-fact”.   Passing S. 980 would be a great start to corralling the EPA’s assault on private property rights.  This, along with the Supreme Court ruling affirming the 5th amendment right to due process is an indication we are making headway.

http://environmentblog.ncpa.org/epa-and-regulatory-taking-of-private-property/

 

Gold King Mine an EPA Superfund Site

18 Tuesday Aug 2015

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On Tuesday, August 11, 2015, the Environmental Protection Agency (EPA) released an Emergency Response Statement to a massive pollutant spill in Colorado. According to the agency, EPA contractors caused the accidental breach. As a result, contaminated water flushed from the long abandoned Gold King Mine into Cement Creek, a tributary of the Animas River. The following day, EPA released another statement to explain early reports of a much smaller spill. Following efforts by the U.S. Geological Survey to measure flow rate, the volume of lead, acidic toxins, and heavy metal-laden water was determined to be over three million gallons.

Additionally disturbing was the failure of the EPA to inform the state governors of the spill. “The EPA is not communicating openly with the state of New Mexico,” said Governor Susana Martinez to Fox News. “It took them about a little less than twenty-four hours before they even told us.” In fact, she goes on to explain that it was the Southern Ute Indians that notified her office and criticized the EPA for not revealing exactly what the toxins are.

To farmers, industry, and small business the EPA has the well-established reputation of intimidation and tyrannical authority. The enforcement section of their web page offers thousands of criminal prosecutions, a majority of them settled by a guilty plea. Comparable percentages in the criminal justice system are unattainable. Simply, the justice system requires the government to prove a person guilty while EPA’s system leaves little opportunity for one to even attempt to prove themselves innocent.

For example, Washington state dairyman Roger Bajema pled guilty to permitting wastewater discharge. His plea finally came three years after EPA inspectors took a sample of soil from a drainage ditch. Mr. Bajema acknowledges the ditch had a broken rain water pipe used to move run-off from barn roofs to a holding pond. Broken pipe aside, the family believes he was “targeted”. The farmer had attended an EPA informational forum the day before the inspection. Mr. Bajema spoke, voicing his displeasure with the heavy-handed presence of the agency in his community. The following day, while he worked to repair the cracked water pipe, EPA officials arrived at his farm and began inspecting and sampling. After three years of threats of fines for up to $37,000 a day, he finally learned of the results of the samples in a highly dramatized press release.

The EPA earned a $7,500 penalty for the three-year assault on the Bajema family dairy farm. A large sum of money for a small operator, but a mere pittance to EPA coffers. In 2014 alone, under Civil Enforcement Monetary Commitments, the agency raked in $9,738,000,000 (rounded up to the nearest hundred million) in court ordered Injunctive Relief. They received another $135,000,000 (give or take) in other penalties. In addition, under Superfund Cleanup Enforcement they realized $601,000,000 (thereabouts) and another $63,000,000 in Criminal Enforcement Fines (Environmental Protection Agency [EPA], 2015). This to an agency with a 2015 enacted budget of over $8.1 billion and a workforce of over 15,000.

Still, the EPA is responsible for violating the 1972 Clean Water Act (CWA), the very law it is tasked with enforcing. According to 33 U.S.C §1251 et seq. (1972), the CWA makes it, “unlawful to discharge any pollutant from a point source into navigable waters” (EPA, 2015, para. 3). Mr. Bajema was penalized $7,500 and humiliated in his community for the charge of “potential” to pollute. As a result of the stress, he has sold the cows and closed his operation. Will the EPA suffer a similar punishment? It isn’t likely.

The superpower agency may have already begun working on a way to spin their failure. The EPA website shows the Upper Animas Mining District in Silverton, Co as a Region 8 Superfund site although not on the National Priority List (NPL). It is clear the EPA was aware of the issue for decades. However, a recent Associated Press (AP) news article blames the local community for standing in the way thus contributing to EPA’s failure to take action. This “it’s not our fault” approach to the disaster is not a defense Mr. Bajema offered.

Six days after the spill EPA Administrator Gina McCarthy stated, “It pains me to no end to see this happening”. As well, at an event in Washington D.C. she said the EPA is taking full responsibility and when pressed by a reporter said, “I am absolutely sorry this ever happened“. This may be the closest we get to an apology. It pains us all, but where is the accountability? Are we to believe the zero tolerance attitude of EPA enforcement will result in an equal penalty, punishment, and public humiliation as suffered by other offenders? Or, like the General Services Administration (GSA), Internal Revenue Service (IRS), and the Veteran’s Administration (VA) the EPA will go on and suffer no consequences.

– See more at: http://environmentblog.ncpa.org/gold-king-mine-an-epa-superfund-site/#sthash.CSOnq7xS.dpuf