Executive Overreach at the EPA? The Pebble Mine Clean Water Act Dispute

Environmental Law & Property Rights Practice Group Teleforum

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Perhaps in no area was President Obama’s expansive approach to executive authority more apparent than in the Environmental Protection Agency’s (“EPA”) interpretation of the Clean Water Act.  Although both critics and supporters of the Obama-era EPA have recognized that many of the Agency’s Clean Water Act decisions reflected attempts by the Agency to legislate where Congress had not, some observers have found another pattern:  EPA was usurping land use decisions that had traditionally been within the exclusive domain of state and local governments.  The Waters of the United States rule expanded federal jurisdiction to cover routine farming activities, and the designation of Wilderness Study Areas has prevented development in areas not otherwise subject to extra environmental regulation.  While President Trump and EPA Administrator Scott Pruitt have reversed many Obama-era policies, one important one remains: preemptive vetoes of development permits under Section 404 of the Clean Water Act.

The Clean Water Act provides that the U.S. Army Corps of Engineers (“Corps”) is in charge of the Section 404 permit application process, including receiving input from the public as well as state and local governments, preparing a comprehensive environmental impact statement, and deciding whether to grant a permit application.  By contrast, the Clean Water Act provides EPA with narrow authority to veto a Corps-issued permit at the end of the application process.  In 2014, however, EPA initiated a veto of the Pebble Mine, a potential copper and gold mine on state-owned lands in southwest Alaska, before the developer submitted a permit application, much less completed the Corps’ permit application process.  EPA did so over the express wishes of the State of Alaska.  Internal EPA documents even suggest that it believed that the preemptive veto aimed at Pebble could be used as a model for future zoning and watershed planning at the federal level.

This teleforum provides an overview of certain current Clean Water Act developments and jurisprudence, as well as a discussion of the steps EPA has taken to veto the Pebble Mine, a proposed veto that remains pending.  In particular, the teleforum focuses on the effects that EPA’s expansive authority has on state and local governments’ ability to manage public lands.


Myron Ebell, Director of the Center for Energy and Environment, Competitive Enterprise Institute

Robert Perciasepe, President, Center for Climate and Energy Solutions

Tom Collier, CEO, Pebble Partnership 

Moderator: Shannen W. Coffin, Partner, Steptoe & Johnson LLP 

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