OPINION:
The Obama administration engaged in a relentless pursuit of environmental justice on behalf of the American people — with one exception, when its own agencies did the despoiling. In the days before handing over the hero’s cape, the Environmental Protection Agency issued itself a last-minute pardon for its toxic spill at Colorado’s Gold King Mine, and refused to pay valid claims of $1.2 billion. It’s the kind of double standard that leaves ordinary Americans shaking their heads in disbelief. In the course of “draining the swamp,” the Trump EPA should re-examine the dodge of responsibility for flooding Western lands with toxic wastewater.
EPA Administrator Gina McCarthy was unflinching in punishing environmental wrongdoers in accordance with President Obama’s agenda for cleaning the nation’s air and water. But then an EPA contractor punctured a retention pond and sent 3 million gallons of mustard-colored water containing toxic metals cascading into nearby rivers. Ms. McCarthy reassured property owners that the agency would make them whole. That turned out to be only the talk. Before she skipped town, the EPA claimed sovereign immunity under the Federal Tort Claims Act, absolving itself of both responsibility and cost for the spill.
In explaining its interpretation of the law, the EPA said “the act does not authorize federal agencies to pay claims resulting from government actions that are discretionary — that is, acts of a governmental nature or function and that involve the exercise of judgment.” It’s another way of stating that when the government exercises bad judgment, it’s protected from the consequences because, well, it’s the government. No one was fired or even reprimanded. The rivers are said to be clean now, but only because more than a million pounds of metals, including arsenic and lead, have been washed into Lake Powell, a resort spot on the border of Utah and New Mexico. Vacationers are advised not to stir up the mud.
The EPA undertook an investigation of the accident and concluded that the crew failed to properly gauge the toxic water level in a mine tunnel when the contractor attempted to install drainage pipes. Their excavation weakened the plug holding back the water and a blowout enabled contaminated water to rush uncontrolled downstream. So far, the government has paid $4.5 million in clean-up compensation. The Indian tribes, ranchers and local governments along the banks of the Animas and San Juan Rivers in Colorado, New Mexico and Utah that incurred expenses during the clean-up of the spill must grin and bear the remaining costs.
There’s hope that the EPA under new management will clean up the mess that Gina McCarthy and her EPA made. Scott Pruitt, President Trump’s nominee to run the agency, faces stiff headwinds in his confirmation hearings from environmental advocacy groups complaining that as the Oklahoma attorney general, he resisted federal co-opting of state environmental issues. If confirmed, he will have an opportunity to reconsider a decision to let a major offender walk. Americans who struggle under heavy Obama-era regulatory burdens expect one rule of law for everyone — even when the guilty polluters are from the government.
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