Denver Lawyer: Federal Lawsuits Can Restore Balance on Environmental Laws

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Written by John Egan for Industrial Info Resources (Sugar Land, Texas)--Paul Seby, a veteran Denver natural resources lawyer, has some advice for states and the Metals & Minerals industry: Keep on litigating, because every now and then you win. And victories at the federal level can restore the balance between state and federal agencies that has traditionally governed federal environmental law.

Speaking at the recent joint annual meeting of the Colorado Mining Association (CMA) (Denver, Colorado) and the Society of Mining, Metallurgy & Exploration (SME) (Englewood, Colorado), Seby said federal agencies "are increasingly usurping" states' role in energy, mining and environmental protection decisions. "Congress intended for a meaningful state-federal partnership," he told the conference. "Courts have enforced the partnership. Politics has eroded the partnership."

"Federalism is supposed to be about sharing power between state and federal governments, but there has been a tremendous assault on state decision-making by federal agencies," Seby said. "The future of mining depends on the future of cooperative federalism."

Seby, who last month co-founded the law firm of Seby Larsen LLP (Denver), has practiced natural resource law for more than 20 years. In a subsequent interview with Industrial Info, he said: "The system is out of balance. In too many cases, the state has been cut out of the process, and little heed is paid to its viewpoints. Industry needs to continue working with the state to protect and preserve its role in mining decisions. And states need to speak up loudly to protect their interests. If those concerns are overrun or ignored, federal litigation is an option. States need to enforce their rights, through federal litigation if necessary."

Seby said that states remain the first and best judges of how to balance economic development with environmental protection. But all too often federal agencies ignore states' viewpoints.

The U.S. Environmental Protection Agency (EPA) (Washington, D.C.) "has allowed its regulatory agenda to be largely defined by 'Sweetheart Settlements,' consent decrees it enters into with environmental organizations," Seby told the SME/CMA conference on February 26. "States responsible for implementing these regulations (resulting from these consent decrees) have little knowledge or input in this process, which is not consistent with the cooperative federalism structure of federal environmental law."

"Things are going to get worse in the second Obama administration," Seby told Industrial Info. But he said he's not gloomy about the near-term prospect for mining companies, energy companies or states: "Federal courts have brushed the EPA back when it crossed the line," he said, pointing to last year's decision by a federal appeals court vacating the EPA's Cross-State Air Pollution Rule (CSAPR).

Currently, Seby is crossing swords with the EPA over the agency's regional haze rule. That case, involving North Dakota, is before the U.S. Court of Appeals for the Eighth Circuit. And about a decade ago, Seby was part of a successful federal litigation, American Corn Growers Association v. EPA, which was decided in the U.S. Appeals Court for the D.C. Circuit.

Turning to Colorado, Seby blasted the state's "Clean Air--Clean Jobs Act" as a "billion-dollar fraud" that was "negotiated by special interests and state regulators behind closed doors and rushed through the legislature." In his remarks, Seby said the law, adopted in 2010 and approved by the EPA in 2012, "is not about clean air, and it's not about jobs either." That law forced utilities in Colorado to retire 551 megawatts (MW) of coal-fired generation, install pollution-control equipment at 742 MW of coal-fired generation, and switch 463 MW of coal-fired generation to natural gas.

He expressed concern that Colorado's law would become a template for other states. Seby also blasted a closed-door settlement in 2011 between EPA and several environmental groups that added 54 species to the Endangered Species Act (ESA). The Obama administration has dramatically expended the rate of ESA listings compared to the Bush administration, he said. "Too often, states, land owners and developers are left out" of these settlements, he said.

At the CMA/SME meeting, Seby was preceded by Mike King, executive director of the Colorado Department of Natural Resources (DNR) (Denver). King expressed frustration in working with the federal U.S. Fish & Wildlife Service (F&WS) on the potential listing of the Gunnison and Greater sage-grouse as federal endangered species. There are many different types of sage-grouse, but in general they are large, rounded-winged, ground-dwelling birds, up to 30 inches long and two feet tall, weighing from two to seven pounds, according to F&WS, a branch of the U.S. Department of the Interior (DoI) (Washington, D.C.).

Speaking of the Gunnison Sage Grouse, King said, "The state and community did everything it was asked to do, but the F&WS still put it on the presumptive endangered list." A final determination will be made by this September. Having an animal on the federal endangered species list could have a significant impact on residential development, mineral development and other business activity in the area. When a federal agency acts this way, King asked, "as a public official, how can I go to the public and property owners and ask them to make sacrifices? How can I say, 'If you work with us, we can protect your property rights?' " When the federal government's acts that way, it cuts into the credibility of the state government, he added.

King also expressed his frustration about another type of potentially endangered species, the Greater Sage-Grouse: "Between 2000 and 2012, Colorado spent over $40 million to protect the Greater Sage-Grouse," he told the conference. "We have protected the Greater Sage-Grouse, and we will continue to do that. But the F&WS at times lives in a parallel universe: the game it plays is, 'Bring me a rock and I will tell you if it's the right one. But it can't tell you anything in advance about the rock.' "

Despite Colorado's unhappiness with the F&WS, a source told Industrial Info the state was unlikely to engage in federal litigation: "States don't sue the federal government lightly, and litigation is not our governor's style. The federal courts are an option, but not an attractive one."

Industrial Info Resources (IIR), with global headquarters in Sugar Land, Texas, and eight offices outside of North America, is the leading provider of global market intelligence specializing in the industrial process, heavy manufacturing and energy markets. Industrial Info's quality-assurance philosophy, the Living Forward Reporting Principle™, provides up-to-the-minute intelligence on what's happening now, while constantly keeping track of future opportunities.