For the past week, 300,000 people in and around Charleston, West Virginia, have been unable to drink the water that came from their taps, because of the toxic byproduct of feeble regulation and non-existent enforcement. Thousands of gallons of a coal-cleaning agent seeped into the local water supply after it oozed out of an antiquated storage tank and then overflowed a surrounding containment area just a mile upriver from the local water plant. Significantly, inspectors had not visited the facility in more than a decade, except by a smattering of state officials focused on air pollution, who walked on by the corroded tank and the bird's eye view of the river.
Disturbingly, we know very little about the effects of the chemical on humans. The weak federal Toxic Substance Control Act and the diminished enforcement power of the EPA and state officials in West Virginia have left local residents and citizens across the country wondering how their government came to be so powerless to stop this obvious hazard, made worse by the keystone-cop ineptitude of West Virginia’s Governor Tomblin in the days after the spill.
The search for an answer to that question leads right to the doorstep of anti-regulation politicians like Sen. Mitch McConnell from Kentucky. Decades of coal mining in the region have taken a profound toll on mountains, valleys, streams, and rivers, throughout Appalachia. And as Charleston takes its place in the history of regulatory disasters alongside the West Texas chemical plant disaster and the BP spill in the Gulf, what is the Senate Minority Leader's priority this week? Not examining how to repair the shredded regulatory infrastructure that left West Virginians without clean water. To the contrary, he's focused on cutting back further on attempts to rein in the pollution caused by coal production.
Earlier this week, McConnell fired off a letter to the Government Accountability Office asking it to "review" Congress's ability to use the Congressional Review Act (CRA) to force an up-or-down vote to stop a proposed rule from the EPA that would require new coal-burning electricity plants to meet certain standards of air quality under the Clean Air Act. Specifically, the rule is aimed at reining in these plants’ emissions of climate disrupting greenhouse gases, and it represents a key part of the EPA’s efforts to tackle the problem of climate change. Take note that it is in early stages at this point; EPA has merely proposed the rule and is preparing to take comments on it. That's significant because the CRA was intended as an avenue for Congress to block final rules issued by agencies. McConnell doesn't plan to wait for the process to run its course; he wants to block the rule now. That’s bad news for a lot of reasons.
Pulling the rug out at the last minute like this would cause the exact kind of “regulatory uncertainty” that corporate interests and their allies like McConnell are so fond of railing against. In addition, time is quickly running out on averting the worst consequences of climate change; we simply cannot afford any delay of any kind in this rulemaking.
But that’s not the worst part, though. If McConnell’s CRA move is successful, he wouldn't just block this specific rule, he would chill the development of future rules aimed at power plants unless and until Congress passes new legislation. Under the Congressional Review Act, 5 USC 801(b)(2), "A rule that does not take effect (or does not continue)… may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule." McConnell's choice of the CRA may be informed by this very provision.
But the strangest facet of McConnell’s idea is that even if he could win votes disapproving the proposed rule in both houses of Congress, his action won’t go anywhere under the CRA without the President’s signature. The President, who has made EPA rules on climate change an essential part of his legacy, would never sign such legislation. McConnell is either going for the embarrassment factor or pandering to his base, or both. Under current law, he can’t be serious about getting this dirty deed done.
But what's most remarkable about all this is McConnell's timing. The very week that the people of Charleston are unable to drink the water that comes out of their taps because of a coal-related environmental disaster, the Minority Leader of the U.S. Senate proposes to make it easier for the coal industry to pollute. It tells you everything you need to know about his priorities.
Rena Steinzor, CPR President; Professor of Law, University of Maryland Carey School of Law. Bio.
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