Letter of Support for EPA Fair Play Act, S. 830

May 09, 2013

Dear Senator Manchin:

On behalf of more than two million Americans for Prosperity activists in all 50 states, I applaud you for reintroducing the EPA Fair Play Act (S. 830), which would prevent the EPA from retroactively vetoing permits, bringing more permanency and certainty in the permitting process.

The recent Mingo Logan case in the D.C. Circuit is an egregious example of the EPA’s aggressive overreach, and it highlights how politicized the permitting process has become. A mining company in West Virginia worked for ten years with the state, EPA and the Army Corp of Engineers to get a Clean Water Act permit for its Spruce Mine project. In 2007, the Army Corp issued the final permit allowing the company to move earth that was left over after mining into an adjacent valley. Once President Obama got elected and control of the EPA changed hands, the agency issued a letter in 2011 attempting to revoke the permit, an unprecedented move under the Clean Water Act. What’s really at issue here is that the Spruce Mine got its permit under the Bush EPA and the Obama EPA did not agree.

The D.C. Circuit Court of Appeals ultimately sided with EPA’s interpretation of the Clean Water Act’s Section 404 permit veto authority, setting up a structure in which EPA permit decisions under one administration are not necessarily going to be upheld under the next. This impermanency of these permitting rules means that businesses, workers, communities and investors face further uncertainty in their business decisions.

Your bill clarifies that the EPA does not have the authority to revoke permits after they have already been issued, as it did in Mingo Logan v. EPA. This will limit politics in the permitting process and it will give investors and employees more certainty about the future. As a result, they will be more likely to develop new projects, leading to higher levels of energy production, economic growth, and job creation.

AFP is proud to support the EPA Fair Play Act (S. 830). I urge your colleagues to support its passage, and I look forward to working with you in the future.


James Valvo
Director of Policy
Americans for Prosperity

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