Regulating behind closed doors, the cozy relationship between the Feds and environmental groups

When federal agencies can’t justify an action through normal channels, they seem to invite lawsuits from environmental groups, the settlement of which allows the agency to obtain court sanctioned, negotiated settlements that bypass input from affected parties and the public.

The U.S. Chamber of Commerce notes that this tactic is most often used by the EPA and U.S. Fish & Wildlife Service and somewhat less often by U.S. Forest Service, the Bureau of Land Management, the National Park Service, the Army Corps of Engineers, the U.S. Department of Agriculture, and the U.S. Department of Commerce.  The Sierra Club is the most often used partner in this scam, closely followed by the WildEarth Guardians, the Natural Resources Defense Council, and the Center for Biological Diversity.

This “sue and settle” tactic is made possible due to the structure of environmental laws which not only get the Feds what they want, but also enriches environmental groups while at the same time hindering the legitimate function of the government agency.  For instance, the Endangered Species Act is used as a money generator for such groups.  The structure of the law makes it easy for environmental groups to game the system.  According  to attorney Karen Budd-Falen, “Species are listed by a petition process, which means that anyone can send a letter to the federal government asking that a species, either plant or animal, be put on the ESA list. The federal government has 90 days to respond to that petition, no matter how frivolous. If the federal government fails to respond in 90 days, the petitioner – in the vast majority of cases, radical environmental groups – can file litigation against the federal government and get its attorneys fees paid. The simple act of filing litigation does not mean the species will get listed or that it is warranted to be protected; this litigation is only over whether the federal government failed to respond to the petition in 90 days.  Between 2000 and 2009, in just 12 states and the District of Columbia, 14 environmental groups filed 180 federal court complaints to get species listed under the ESA and were paid $11,743,287 in attorneys fees and costs.”  The burden of responding to the many lawsuits causes government biologists to spend much less time on conservation work.

The U.S. Chamber of Commerce opines that “As a result of the sue and settle process, the agency intentionally transforms itself from an independent actor that has discretion to perform its duties in a manner best serving the public interest into an actor subservient to the binding terms of settlement agreements, which includes using congressionally appropriated funds to achieve the demands of specific outside groups. This process also allows agencies to avoid the normal protections built into the rulemaking process, review by the Office of Management and Budget and the public, and compliance with executive orders, at the critical moment when the agency’s new obligation is created.”

A major concern is that the sue and settle tactic, which has been so effective in removing control over the rulemaking process from Congress, and placing it instead with private parties under the supervision of federal courts, will spread to other complex statutes that have statutorily imposed dates for issuing regulations, such as Dodd-Frank or Obamacare.

The Chamber says that it is important to fix this culture of “sue and settle” because: “Congress’s ability to act on or undertake oversight of the executive branch is diminished and perhaps eliminated through the private agreements between agencies and private parties. Rulemaking in secret, a process that Congress abandoned 65 years ago when it passed the Administrative Procedure Act, is dangerous because it allows private parties and willing agencies to set national policy out of the light of public scrutiny and the procedural safeguards of the Administrative Procedure Act.”

Read the full report from the U.S. Chamber of Commerce here.

Pima County officials cannot account for time spent on Rosemont Mine

How do we know that Pima County officials are working on what they are supposed to? And how much time do they spend on certain projects?

The Southern Arizona Business Coalition (SABC), an advocate for Rosemont, wanted to know how much time Pima County officials spent on Rosemont copper mine related business over the last two years. One of SABC’s interests was to find out if Pima County officials were using taxpayer money to aid groups that are opposed to the mine, as Pima County is.

SABC sent a Freedom of Information Act request to the County asking for:

“Any and all documents, timesheets, salaries, projections, calendars, meeting notes, audits, expense reports, budgets, reports, communications, correspondence, emails or other electronic transmissions relating to the amount of time and hours worked on any matters relating to the Rosemont Copper Project by any of your employees, representatives and/or consultants…..”

SABC did receive some information but much was missing. Pima County offered three excuses for its failure to provide the requested information:

1) The “majority of departments do not maintain records indicating time spent on a specific project.”

This excuse suggests that the County should change its operating procedures so that they are more accountable and transparent. Businesses require accountability from their employees. Even I, as a largely free-ranging geologist, had to account for time spent so the company could properly attribute time and expenses to specific budget items. Why doesn’t Pima County require this employee accountability?

SABC estimates that 38 County employees spent at least 10 percent of their time over the last two years on the Rosemont issue. That time cost taxpayers over $400,000 per year. And SABC estimates approximately 3% of staff time was spent over the previous 3+ years. Of course, at least some of that time would be legitimate processing of required permits, but how do we know how much. As I mentioned above, how much time and taxpayer money was spent on, shall we say, extracurricular activity that could aid opponents of the mine? Pima County will not or cannot say. Since the County did not provide adequate time allocation for the staff and legal office, SABC made assumptions based on previous information and experience in this issue and estimated that the County spent approximately $1 million on staff time (including Supervisors and their staff), outside consultants and legal fees fighting Rosemont.

2) The County Attorneys Office claimed attorney-client privilege regarding billing records.

This is a spurious argument since the attorneys are either County attorneys or attorneys hired by the County and the County is also the client. The right hand can’t disclose what the left hand is doing? This is another transparency issue. The County Attorney could have provided time allocation without violating attorney client privilege, but chose not to.

SABC says the County “would not have incurred $97,000 in attorneys’ fees had it not abused its discretion in denying the air quality permit to Rosemont. On November 30, 2011, the attorney working on behalf of Pima County found that the County’s ‘decision to deny Rosemont’s permit application . . . was contrary to law.’ Further, a Superior Court Ruling, dated July 5, 2012, determined that the Pima County Air Quality Hearing Board ‘acted in an arbitrary and capricious manner and that the abused their discretion.’ Arizona Department of Environmental Quality has since taken over this process from the County. An additional $15,500 was spent by Pima County appealing the Arizona Corporation Commission line siting proceeding for the TEP power line to Rosemont. Again, they did not prevail.”

3) The County is “unable to provide documents that no longer exist.”

This is “the dog ate my homework” excuse. Pima County broke the law if it did not maintain official records. Arizona law requires the County to “carefully protect and preserve the records from deterioration, mutilation, loss or destruction and, when advisable, shall cause them to be properly repaired and renovated.” A.R.S. § 41-151.15; and A.R.S. § 39-121.


These excuses show lack of accountability, lack of transparency, and failure to follow the law on record keeping. Since Pima County has stated publicly it is against the Rosemont mine, one wonders how much time was deliberate delay and obfuscation in permit processing. SABC alleges that Pima County also wasted time and money by attempting to duplicate work done by 17 federal agencies.

Taxpayers deserve better County accountability no matter which side of the Rosemont issue we take.

See also:

Pima County versus Rosemont

Jaguars versus the Rosemont mine

Proposed Jaguar habitat in Arizona and New Mexico is scientifically and legally indefensible

Rosemont’s dry-stacked tailings will be greener than those near Green Valley


Fossil fuel resources of the United States

According to a report by the Congressional Research Service (March, 2011), “U.S. proved reserves of oil total 22.3 billion barrels, and reserves of natural gas total 283.9 trillion cubic feet. Undiscovered technically recoverable oil in the United States is 134.5 billion barrels, and undiscovered technically recoverable natural gas is 1,176.2 trillion cubic feet. The demonstrated reserve base for coal is 486 billion short tons, of which 261 billion short tons are considered technically recoverable.”

This should be enough for the U.S. to be independent of middle-eastern and other unfriendly sources. However, a large part of these resources are unavailable due to government regulations. For instance, most of the off-shore component of these resources is unavailable due to the de facto moratorium on exploration (see Obama’s April Fools Joke.) Many prime on-shore areas are blocked due to various government regulations such as application of the Antiquities Act.

The resources reported above are just part of the potential ultimate resource. The graph below (from the Congressional report) shows the situation for Oil, but the pyramid structure holds true for all mineral resources.

 The “Reserves” category is that portion of the resource that has been proven and measured according to strict rules and reported to the Securities and Exchange Commission as bankable assets.

 The “Undiscovered technically recoverable” category also has a strict meaning. This category consists of those areas that have geological characteristics similar to those of producing areas. These estimates are made by the U.S. Geological Survey for on-shore resources and by the U.S. Bureau of Ocean Energy Management, Regulation and Enforcement (formerly the Minerals Management Service) for off-shore resources.

The bottom and largest resource category is the “Discovered and Undiscovered sub-economic resources.” These deposits may be currently sub-economic because of the state of technology, the state of supply and demand, or the state of regulation. Shale gas was in this category until very recently. Methane hydrates are still in this category.

When I first began working as a geologist, oxide copper deposits were in the bottom category because there was no economic way to exploit this resource on a large scale. However, with development and widespread use of solvent-extraction/electro-winning technology, these deposits because economic and are now responsible for a significant part of our copper production.

Human ingenuity produces the technological innovations and human ignorance or ideology produce the regulatory impediments. With a more rational energy policy the U.S. could have more jobs and more secure sources of the natural resources we depend upon.

See also:

Obama Clueless on Energy – Part 1

Obama Clueless on Energy – Part 2

Obama administration still clueless on energy

Obama says Drill Baby Drill just not in the United States

Gasoline Prices and the Obama Energy Policy

Clean Coal: Boon or Boondoggle?