Alabama Claims State's Rights Trump EPA Jurisdiction

Alabama has a dismally poor history of enforcement by the lead state regulatory agency the Alabama Department of Environmental Management (ADEM) and its oversight committee the Environmental Management Commission (EMC). Big business has enjoyed a freedom in this state that borders on criminal, and have now they have turned out their attack dog lawyers to put the bite on a federal takeover of ADEMs water permitting authority by the EPA implying it to be a violation of Alabama's Constitution.

BARD attorney Gilbert says the EPA's demands to ADEM are an overreach by the Obama administration, pushing changes that would amount to new regulations that contradict state law. "What EPA doesn't take into account is state law and the state constitution," Gilbert said. "EPA is reinterpreting the regulations to this administration's liking. And they are focusing on Alabama because the environmental community has lobbied them to do it."

As we have reported before, 14 environmental groups have filed a petition with the US EPA to do what ADEM has never been willing to do--follow and enforce the federal laws of the Clean Air Act (CAA) and the Clean Water Act (CAA). The lawyers are from one primary law firm, Balch & Bingham and the lead bulldogs are BARD lawyers Joel Gilbert and Rob Fowler, both of whom are are very aggressive pro-business advocates exclusively and who have both shown little regard for any environmental regulation and oversight from the EPA.

Their talking points of state's rights and business first have made their way into the gubernatorial candidates rhetoric as reported on in a recent article by the Birmingham News Thomas Spencer.

The following are some lowlights from the candidates, but there is a glimmer of truth in Bentley-R who at least admits there is no real enforcement going on;

Democrat Ron Sparks is dismissive of the federal focus on Alabama's program for protecting water quality. Meanwhile, Republican Robert Bentley wants ADEM to do a better job of enforcing environmental laws. "I do believe you have enough rules and regulations but you do have to enforce them," Bentley said.

"And companies that do not abide by the rules, they need to be fined and that money needs to come back into ADEM," Bentley said. "I think ADEM is lacking in its enforcement. And I talk to a lot of companies that do things right that get upset with the companies that don't do things right. The enforcement is just not there."

Sparks, on the other hand, doesn't take kindly to EPA scrutiny. His negative opinion of EPA is rooted in his dealing with the agency during a conflict in which a north Alabama company was trucking in treated human sewage from the Northeast and spreading it on farmers' fields as fertilizer. EPA had approved the use of the biosolids. "I can tell you, EPA saying ADEM is having problems is the pot calling the kettle black," Sparks said. "EPA certainly don't (sic) need to be pointing the finger at Alabama, in my opinion. I certainly don't want EPA taking over any of the responsibility we have."  *(Note--Sparks bungled that Synagro issue horribly (so did the EPA to be fair) but he should have never agreed to it in the first place. The company was run out of town on a rail after less than three years in business.)

On the national push to lower ozone standards, Bentley took on the more combative role.
Sparks said he'd rely on experts to make sure that meeting the new standards were reasonable and didn't hurt industry.
Bentley said the new ozone standards, which would greatly expand the number of Alabama counties required to take measures to reduce ozone pollution, amount to an intrusion on states' rights. "I believe states should have more of a say-so in what's going on within their borders than they do at the present time," Bentley said. "This gets into a state sovereignty issue."

Both candidates have received campaign support from the coal industry and both are cheerleaders.
 
 Bentley believes coal's environmental impacts can be countered with advances in science. "I want to save coal production and energy in this country," he said. "If the Germans could figure out a way to make gasoline out of coal, I know it probably takes a lot of carbon, but Americans ought to be smart enough to figure out a way we can use coal."

A recent upsurge in coal mining in Alabama has aroused opposition from communities near mine sites.

Bentley said that, in those cases, property rights need to respected, but coal production needs to be accommodated. "Do I want us to mine more coal? I do. Because that produces jobs," Bentley said. "You have to reach a balance between residential areas and coal mining," he said.

"Coal is extremely important to Alabama," Sparks said. "It is extremely important to keep our utility bills low. It is extremely important to many people's livelihoods in Alabama. There again, any regulation that we do we ought to make sure we are using sound science. I know some people get upset with me when I say 'clean coal' but we need to be looking at every ounce of technology we can."

It's hard to believe Ron Sparks is a Democrat. He is so far from the Democratic platform on the environment he sounds more like George Bush than a progressive, although we'll admit that using the word progressive and Alabama is an oxymoron of the first degree.
The memo that Sparky boy apparently did not get our simply cannot read;

"The Democratic Party believes that it is our responsibility to protect America's extraordinary natural resources. The health of our families and the strength of our economy depend on our stewardship of the environment. "We reject the false choice between a healthy economy and a healthy environment. Farming, fishing, tourism, and other industries require a healthy environment. New technologies that protect the environment will create new high-paying jobs. A cleaner environment means a stronger economy. Far too many Americans live with unhealthy air or water quality." 

Bentley-R is wandering into an argument he knows nothing about and is parroting talking points he's been fed by the lawyers on the state sovereignty issue, unfortunately no one has really pressed him on the basis for his remarks. If they did, he would be shown for the ignoramus he is on the issue and is only capable of repeating what he is told to say, rather than having any real knowledge of what the subject has its roots in. We'll be more specific on the roles of Gilbert and Fowler further on in this post, but let's take a look at what this issue is probably stemming from first.

In a ruling by the Eight District Court Harmon Industries, Inc. v. Browner, 191 F.3d 894 (8th Cir. 1999) that court decided that the EPA cannot prosecute its own penalty action under the Resource Conservation and Recovery Act (RCRA) after a company has settled an action for the same violations with the state enforcement agency.

The Court reasoned that RCRA statutory language providing that the state hazardous waste program operates "in lieu of" the federal program and that actions taken by the state enforcement agency have "the same force and effect" as actions taken by EPA under RCRA indicate that overfiling is impermissible. The Harmon Court further ruled that RCRA specifically limits EPA's overfiling authority to situations where a state with delegated enforcement authority fails to take any action against a violator after receiving notice from EPA that it intends to overfile if appropriate action is not taken. Finally, the Harmon Court ruled that overfiling by EPA in that case was barred by principles of res judicata, since the company already had settled its violations with the state agency.

Harmon is controlling precedent only in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota, the states over which the U.S. Court of Appeals for the Eighth Circuit has jurisdiction.
This action was brought about under the issue of EPA overfiling;

Overfiling occurs when EPA brings an enforcement action against a company which duplicates an enforcement action taken by a state agency. Under prevailing EPA policy, EPA claims the right to overfile whenever a state fails to take "timely and appropriate action" in response to an environmental violation occurring under an environmental program delegated by EPA to the state.

What's important to note is that this rule only applies to the states mentioned and most importantly that the principles of res judicata are used to handcuff the EPA in those states.

Why do we mention all of this? Because this is what the lawyers are trying to accomplish. They want the Harmon ruling to become effective in Alabama and what is most chilling about that move is the res judicata handicap because it will mean that even if ADEM doesn't do it's job, which they rarely do anyway, and simply enact the weakest level of some kind of enforcement, the feds will be powerless to step in.

Since the courts in Alabama have been packed with pro-business judges, if the Harmon ruling were to become law in Alabama, industries would stand a great chance of prevailing in any legal challenge brought before them, by let's say, the "environmental community." (You'll see that phrase again shortly.)

This is what the lawyer's are up to and Alabama citizen's will ignore this at their peril.

In one of our earlier posts we wrote about ADEM being given a swift kick by the EPA when they were brazen enough to submit a proposal to the EPA with the feds mandated recommendations to their Phase I  & II MS4 programs (which covers stormwater permitting) that they "ran by the business community" (primarily BARD members) first. Predictably, the "business community" was not happy with more regulations and changes of any kind from the toothless tiger ADEM, so they "had a voice" in the changes ADEM made before the final draft was submitted to the EPA.

That kind of makes it clear who is really in charge.

Back to Mr. Fowler and Mr. Gilbert.

On August 19th there was a meeting in Montgomery at the offices of the League of Municipalities of  the Energy, Environment and Natural Resources Committee (EENR) that was attended by various Council members and Mayors from different cities around the state, and Resource advisers for the committee-- we''ll name the latter;

Dale Hurst, ADEM Air Division

Glenda Deans, ADEM Water Division

Dennis Harrison, ADEM Water Division

James Dailey, ADEM SRF Program Manager

Phillip Davis, ADEM Solid Waste Division

Dave Bolin, Alabama Oil & Gas Board

Joel Gilbert and Rob Fowler of the Balch & Bingham law firm

It would be interesting to know what the criteria was for choosing these particular lawyers given their aggressive, anti-regulation, anti-environmental stance in addition to the companies they represent and those companies' horrendous records on environmental compliance.

Dale Hurst was lamenting about the ozone standards which are a big problem in this state, as well as a nationwide problem, which the EPA recognizes and that's why they're proposing new, stricter guidelines in an effort to control it.

Mr. Hurst states that if the new proposals were adopted "...all counties in a consolidated statistical metropolitan area (CMSA) with a violating ozone monitor, and all counties in a metropolitan statistical area (MSA) with a violating monitor, will be affected. Under these revised Ozone standards, a worst case scenario of non-attainment areas...would affect 29 counties in Alabama. Hurst said this could impact municipalities by creating obstacles for obtaining a construction permit in a non attainment area..."
Mr. Hurst went on to say that "the EPA is constantly changing standards, mostly making them more stringent...these are obstacles to constructing to new or expanding existing industries which have high levels of air pollutant emissions. These will be ongoing issues for municipalities to manage to ensure growth in the future."

Granted this was a municipality meeting and we would expect it to have a business tone to it, but all we hear is complaining about the EPA and that stricter rules will impede industry and new construction.

Next are a few "gems" from our favorite two environmentally sensitive busy boys;
Mr. Gilbert said many felt the the initial draft contained requirements beyond what is mandated by the CWA and that conflict (sic) with Alabama law and the State Constitution. Based on comments from the business community and Phase I & II municipalities, ADEM revised the draft Phase II MS4 general permit....Mr. Gilbert said ADEMs revisions addressed many, but not all, of the concerns raised by the business community and various municipalities.
(They really do want it all their way don't they?)
Mr. Fowler said the EPA, with pressure from the environmental community, had threatened to formally object and take over the Phase II MS4 permit if ADEM did not re-incorporate the requirements it had deleted from the original draft.
(The EPA did formally object which really shouldn't be a surprise Mr. Fowler.)
Gilbert got back into it and claimed that; Either the inclusion of the requirement EPA is demanding or the takeover of the Phase II MS4 permitting by EPA would be financially devastating to the municipalities with the new "burdensome" permitting requirements. (Following the law is tough for multi-million and billion dollar companies Mr. Gilbert?)

Last but not least;

"Mr. Gilbert stressed that industries/businesses and the affected municipalities would be subjected to double regulations from federal/state agencies and subject to requirements that are not part of the CWA of even the EPAs own regulations."

So there you have it, the intentions and sentiment should be very clear to the reader. There really is an easy solution to all of this: companies should follow the law, ADEM should do it's job and penalize them with harsh enforcement that is designed to end the violations, not encourage them and use the monetary penalties as a "cash cow." The profits that ADEM makes off of increased emissions (Alabama Power comes to mind) are diametrically opposed to enforcement--this is an unholy alliance that should be ended promptly.

This is the most ineffectual state agency in the nation, dogged by corruption and collusion and completely unable and unwilling to do anything remotely resembling environmental management. It has always been this way with ADEM and the lawyers are used to running the show much to the detriment of Alabama's environment and their citizens.

"We reject the false choice between a healthy economy and a healthy environment."

If these companies truly fear the overfiling process then here's how you fix it:

At a minimum, they should review relevant federal rules and guidance documents to ensure that any state-sanctioned settlement does not contravene federal policy or standards. They also should educate themselves as to trends in EPA's overfiling in the states in which they operate. If a state's enforcement under a given statute is particularly lax, if a company's industry has a poor environmental track record, or if the settling company is a chronic violator, the risk is higher that EPA may overfile in order to make a strategic point. Where the likelihood of overfiling appears to be great, it may be advisable for the company to negotiate its settlement directly with EPA in the first instance or, in the alternative, to insist that EPA participate in and sign off on any settlement with the state agency.

If they fear EPA takeover and being made to finally follow the rules of the CWA & the CAA then they have only themselves to blame for resisting it for years. Even they have to know that they must demotivate themselves from what they're doing because in the long run, their ways will catch up with them and they are setting themselves up for an expensive fall with their corporate arrogance. Ditto for the lawyers who act as their enablers.

Alabama has already attracted the federal eye and there is intense pressure on coal gluttons and the big polluters to rein in their toxic terror as the effects are more widely known through medical and scientific investigation and study. To blame the federal scrutiny entirely on environmentalists is disingenuous and distracting and it's the argument of a stoic mind that is incapable of forward thinking into the 21st century. It's the argument and the mindset of the past before any laws were enacted, when rivers caught on fire from the high level of pollutants and bellowing smoke was commonplace in most American cities.

By the same token, corporate whores are firmly embedded in all levels of Alabama's government (one of two more will be our next Governor) and good intentions from the environmental groups and a few brave souls will have a very difficult time overcoming them.