Legal Roundup 2

The Environmental Protection Agency is not particularly popular in Alaska, where it is often a symbolic lightning rod, a symbol of federal intervention in state resources.  Like national Republicans needing to deny climate science, it is a political fact of life that Alaskan politicians of both major parties need to express opposition to the EPA.

Take Democratic Senator Mark Begich, for example, who has pledged, among other things, “to stand up to the EPA for blocking mines between Ketchikan and Kotzebue.”  On the Republican side, Dan Sullivan is seeking his party's Senate nomination by touting his conservative record as Attorney General, noting that he “fought the EPA from shutting down our state.”

Senator Begich’s bellicose rhetoric notwithstanding, he is on the same side as many environmental and fisheries advocates with respect to proposals for large-scale mining in Southwest Alaska.  He has stated that the proposed Pebble Mine presents “too many potential long-term impacts to a fishery that is pretty critical to that area but also to Alaska, to world markets,” calling the project “the wrong mine, wrong place, too big.” 

In this respect, while the Senator is "skeptical of federal overreach" as a procedural matter, he would presumably be supportive of a possible outcome of a substantive review the EPA initiated last February.  The agency is looking into potential discharges associated with mining at the Pebble deposit in the headwaters of Bristol Bay.  The review is being conducted under Section 404(c) of the Clean Water Act and could lead to a subsequent decision to veto permitting of the mine.

In March, the Supreme Court declined to hear an appeal in the Mingo Logan lawsuit involving Appalachian coal mining.   As discussed in my April 5 Legal Roundup post, that case challenged the timing of 404(c) action by the EPA in West Virginia.  Finding that debris from the “mountain top removal” mine would destroy miles of unspoiled streams, endanger wildlife and harm neighboring communities, the agency had used its 404(c) authority to overrule the issuance of a permit by the Army Corps of Engineers several years earlier.  The legal challengers argued that it was too late for the EPA to act once the permit had been issued.

In declining to hear the appeal, the Supreme Court left intact a decision by a federal appeals court that ruled broadly in favor of the EPA’s action.  Specifically, the appeals court determined that Section 404(c) “imposes no temporal limit” on the agency, which is authorized to exercise its veto "whenever" it determines that an adverse effect may result from a discharge. 

The Mingo Logan case is relevant to Alaska because Section 404(c) is the statutory basis for the review initiated by the EPA in February.  As expected, the Pebble Partnership has sued the agency, arguing that it lacks authority to commence a 404(c) review ahead of the company’s formal request for a permit – in other words, that the EPA acted prematurely, essentially the opposite of the Mingo Logan claim that the EPA acted too late.

Mingo Logan will be an important precedent in support of the EPA ‘s authority to act before, as well as during or after, a formal permitting process.

A few days ago, a federal appeals court issued another mountain top removal decision in favor of the EPA.  In National Mining Association v. McCarthy, mining interests and several state governments had challenged a coordination process that the EPA and the Army Corps adopted in 2009 to facilitate their consideration of permits under Sections 402 and 404 of the Clean Water Act.  This was largely a procedural ruling and is not as directly relevant to the Pebble project as Mingo Logan is, but nevertheless represents another legal victory for the EPA and the breadth of its authority under these provisions of the Clean Water Act.

Shifting gears, my Whose Land series of posts explored the legal and moral “standing” of natural objects such as the animals, plants, rocks, rivers, mountains and tundra that lie at the heart of Aldo Leopold’s land ethic.  The series discussed the famous Mineral King case and argued for ethical application of the legal principles articulated in Justice Douglas’s powerful dissent.

In support of this extension of legal and moral ideas, I noted that other concepts once thought radical and extraordinary have found their way into commonplace legal reasoning.  A prime example is the once inconceivable notion that corporate entities, which are artificial creations arising from state action, could be entitled to some of the fundamental protections that our legal system extends to human beings. 

My April 30 post in that series, captioned Are Corporations People?, noted that the Supreme Court had heard arguments the month before in Hobby Lobby and two related cases that argued for a further extension of corporate personhood to include protection under the Religious Freedoms Restoration Act of 1993.  We now know, of course, how that turned out:  five of the Justices recently allowed owners of certain closely-held companies to impose their personal views on employees by denying them access to medical insurance on religious grounds.

Courts decide cases based on the facts in front of them.  Hobby Lobby involved a family-owned company and assertions of religious objection to four specific aspects of medical care.  But the court’s reasoning is potentially much more open-ended than the facts of the particular cases decided in June.  “The court’s expansive notion of corporate personhood,” Justice Ginsburg wrote in her dissenting opinion, “invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faiths.” 

The decision opens a Pandora’s box of further questions.  For example, what does it take to be a closely held company in the sense used by the majority?  Is the number of employees affected simply irrelevant if the ownership group is small enough?  What if a single member dissents from a family consensus?  Courts will grapple for years with the application of the broad concept of what it means to be closely held for purposes of applying Hobby Lobby.. 

Another issue involves the limits, if any, on the types of medical procedures or social issues that can be objected to in future cases.  It is inconceivable that our country's founders, to whom the majority justices often like to refer, intended that for-profit companies would be able to browse a buffet of laws and regulations in order to pick and choose those that suit their appetites.  You won't find that concept anywhere in the Federalist Papers.

Apart from my substantive disagreement with its outcome, Hobby Lobby does serve as a further illustration that obscure legal principles can take seed and grow over time, becoming more and more widely accepted and incrementally expansive in the scope of their application.  Perhaps there is still hope for the future legal standing of trees and other natural objects as Justice Douglas presaged in Mineral King.