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SHOSHONE NEWS-PRESS, Tuesday, Feb. 11, 2003, page 4

Taking Stock

Snatching defeat from the jaws of victory

by Ron Roizen
SNRC Science Committee

On Sept. 30, 2002 -- at the end of the same month in which EPA's Record of Decision was published for the Coeur d'Alene Basin -- a half-dozen environmentalist groups sent a jointly-authored letter to Washington state's U.S. Sen. Patty Murray and Maria Cantwell.

The letter's opening line requested the senators' assistance in "rectifying serious inadequacies" in the EPA's ROD, specifically noting that the "memorandum of agreement" for the Superfund site was "...of questionable legality."

The target of the authors' displeasure was the new Basin Environmental Improvement Commission, comprising representatives from the Coeur d'Alene Tribe, Idaho and Washington, county commissioners from Shoshone, Kootenai, and Benewah Counties, and the United States (read, EPA).

This new institution, the letter's authors argued, violated Idaho's Environmental Improvement Act (which created the BEIC), the federal government's CERCLA statute (the public law creating Superfund), and perhaps even the U.S. Constitution.  In light of "...the gravity of the public health and environmental threats..." represented in this Superfund site, the authors suggested, the ROD should be amended to eliminate MOA and, in effect, withdraw the EPA's support for the new power-sharing commission.

The letter's body articulated six specific legal challenges, each equipped with its own roman numeral and brief argument.

Point I offered that EPA lacked legal authority to share cleanup responsibility and that the EPA had erred in giving "...local economic interests who are hostile to cleaning up contamination unprecedented and unwarranted power over cleanup, restoration, and funding decisions at the Bunker Hill Superfund site."

Point II suggested that the Idaho act creating the new commission and the MOA were inconsistent in wording and authority delegations.  Jumping ahead, paragraph two of Point IV argued that by including Washington State in the BEIC, the MOA had violated Article I, Section X, Clause III of the U.S. Constitution, which "forbids any state from making an agreement or compact with any other state or foreign power without the consent of Congress."

This last point, I thought, illustrated just how far the letter's authors would reach in order to attempt to undercut and thwart the new commission, even before the BEIC began its work.

The September letter was the ROD's first legal challenge, though the call for relief was addressed to Washington's U.S. senators rather than a federal court.  Cantwell, in turn, forwarded the letter for legal evaluation to the Congressional Research Service (CRS), a wing of the Library of Congress that provides backup for members of Congress regarding scientific, legal, and other questions.

In a letter dated No. 12, 2002, Robert Melts, an attorney with the American Law Division of the CRS, offered a detailed legal opinion regarding the several charges of the Sept. 30 letter.

Melts' letter systematically and methodically rejects each of the environmentalists' letter's claims.

Regarding Point I, for example -- that EPA lacked authority to delegate cleanup responsibility to the new commission -- Melts wrote that "...administrative agencies have implied authority to enter into arrangements that effectuate the purposes and delegated powers in a statute, absent express indication in the statute otherwise."

Regarding the point that the MOA constituted an illegal interstate compact, Melts observed that "...since 1893, however, the court has qualified the clause's requirement of congressional consent, explaining that it applies only to 'the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.'"

In a word, Melts carefully constructed reply and legal analysis declared that the environmentalists' letter's charges were groundless.

On its face, at least, Melts letter appeared to be a victory for the BEIC and for shared local, state, tribal, and federal authority in the Superfund enterprise.

Yet, and on closer reading of Melts' analysis, it was a not a victory without significant potential costs for the BEIC and the citizens of the CDA Basin.

In each of his replies, Melts made explicit reference to the subordinate and instrumental role of the BEIC with respect to EPA and its ROD.  In other words, with respect to virtually all the Sept. 30 letter's arguments, Melts pointed out that the EPA retained the legal authority and the muscle on the BEIC to insure that its (i.e., EPA's) wishes would not be thwarted.

For example:  Melt agreed that county, tribal, and state representatives were given a vote on the new commission; however, EPA retained both a vote and a veto respecting any decision the other members of the commission favored.

In the same vein, Melts pointed out that the MOA took explicit care that EPA's enforcement of CERCLA would not be compromised by the BEIC.  Wrote Melts, "...the MOA states that '[e]ach party to this Agreement reserves all rights, powers, and remedies' and that the parties recognize that 'it is the federal government's responsibility to make various decisions under CERCLA.'"

Instead of affirming the Sept. 30 letter's fears that the BEIC abrogated EPA power, Melts countered that the Idaho statute and MOA instead secured EPA's authority.

Melts ended his letter with a sweeping assertion:  "Whatever the federal-state tensions reportedly swirling around this particular CERCLA cleanup, the BEIA [Basin Environmental Improvement Act] and MOA are meant on their face to implement federal power -- that is, the Record of Decision developed by the U.S. EPA -- not encroach upon it."

One can only wonder by what lights Idaho's legislators managed to craft legislation that in effect transformed the BEIC into an agent of the EPA's will.  I remember quite clearly sitting at a table at the Broken Wheel with Marti Calabretta many moons ago, making marginal notations on the draft state bill that was intended both to create a new basin commission and, inter alia, to save the basin from the EPA-proposed expanded Superfund designation.  That same draft bill, seeking to obviate Superfund, had come out the other end as Superfund's chief instrumentality.

Who, one wonders, put in the hand or hands that reversed the original legislation's intent?

And why?