The hypocrisy of “sovereign immunity”
“Exxon had its Valdez, BP had its Deepwater Horizon and how the U.S. Environmental Protection Agency has its Animas River disaster with which to contend.”
That’s how Watchdog energy reporter Rob Nikolewski summed up the aftermath of the disastrous EPA-caused spill in Colorado’s abandoned Gold King Mine, which last month released 3 million gallons of toxic waste into the Animas River. The accident occurred when an EPA backhoe punched a hole into a waste pit during a clean-up effort, turning the Animas bright orange and threatening water sources as far as New Mexico, Utah, and Arizona as the waste dispersed downriver.
Charges of hypocrisy soon began flowing in.
“Nobody is going to take the attention away from EPA’s incompetence on this,” said Colorado Senator Cory Gardner. “If this was a private company, all hell would be breaking loose.”
“In their case, it seems that ‘we’re sorry’ is all that we the people are going to get,” wrote Lindsay Boyd for Watchdog Opinion. “What else can we do? The EPA is an unelected body of bureaucrats. But we all know what happens to private industry when they make mistakes… that lead to environmental disasters and contamination.”
If past spills by private companies are anything to judge by, Gardner and Boyd are right. Nikolewski compared the government’s reaction to the Animas spill to the huge fines issued by the Department of Jusice to Exxon and BP in the aftermath of their disasters. Unlike those companies, the EPA is protected from fines thanks to the common law rule of “sovereign immunity.”
EPA administrator Gina McCarthy said the agency “takes full responsibility” for the accident, but when Nikolewski reached out to EPA headquarters in Washington, D.C. asking for a response to charges that the agency uses a double standard for private companies and for itself, he did not receive a reply.
Signs of trouble
As Watchdog reporter Tori Richards found in a series of bombshell investigations, the story actually goes back ten years. She spoke with the mine owner, Todd Hennis, who said the EPA has a record of releasing toxic runoff from mines that dates back to 2005.
“I have been battling the EPA for 10 years and they have done nothing but create pollution,” he said, suggesting that the activity was intentional so that the agency could declare the area a Superfund site.
In 2010, the EPA asked Hennis for access to his Gold King Mine so they could investigate hazardous runoff from other mines in the area. He refused, fearing that the EPA would create additional pollution, but Hennis said the agency countered with a threat – give us access within four days, or we will fine you $35,000 a day – so he “waved the white flag.”
The story garnered national attention on FoxNews.com and a number of other prominent media outlets, but it was not the only troubling testimony Richards uncovered. Just five months before the Animas River disaster, leaders from the nearby mining town of Silverton reportedly begged EPA officials not to perform tests that would declare the area a Superfund site. Even though no problems were found when the town was tested five years earlier, the EPA pressed back in.
Five days before the breach, another warning was sounded in the Silverton Standard, which published a letter to the editor from a man who identified himself as a professional geologist with 47 years of experience. It warned of a scenario where “the water will find a way out and exfiltrate uncontrollably through connected abandoned shafts, drifts, raises, fractures… contamination may actually increase due to the disturbance and flushing action within the workings.”
He wasn’t too far off.
With such warnings and suspicious activity prior to the spill, and a PR debacle in its wake, is it any wonder that the EPA withheld mine spill documents from Congress? As Richards reported several weeks after the spill, the agency failed to meet its deadline set by the House Science Committee, which requested documents pertaining to the Gold King Mine spill as part of an ongoing investigation into the incident.
The delay came on the heels of weeks of foot-dragging by the EPA, which took several days to notify Utah, New Mexico, and the Navajo Nation that the spill was coming their way via the San Juan River. It took McCarthy a week to visit Colorado. The EPA did not give out the name of the contractor working on the project, along with other details generally considered public knowledge. And the Navajo Nation, which uses the San Juan for drinking water and farming, was given an emergency supply of water in oil-contaminated containers.
A voice on the ground
Watchdog Arena writer Marjorie Haun, a Colorado resident, meticulously covered the spill and ensuing debacle. She was one of the first to seize on the agency’s hypocrisy, noting that according to the EPA’s own “Waters of the United States” rule, the disaster warrants millions of dollars in fines.
After criticizing the agency for its tight-lipped response and low-information answers to questions from the press and local residents, Haun raised the deeper question that has begun to dog the agency: is the EPA even relevant anymore?
“From spill to clean up to compensation the EPA has bumbled its way through its responsibilities, beginning into question its own ability,” she wrote, citing a laundry list of mistakes. Navajo Nation President Russel Begaye for example, claimed the EPA “endangered our people” and called for the removal of all contaminated sediment from the San Juan River. Elsewhere, Haun noted, the EPA has proven little help in assessing the impact of its actions or funding cleanup efforts, while Colorado and New Mexico acted quickly to divert millions in state funds to help cleanup efforts in affected areas. And it was information provided by the Colorado Department of Public Health and Environment that led Sheriff Sean Smith to declare the Animas River safe for recreational use after the waste was washed downstream.
The contrast between the state and federal responses has given traction to proposals that would bring environmental regulation under state control. In his coverage of the story, Nikolewski quoted Nicolas Loris, an economist who covers energy, environmental and regulatory issues for the Heritage Foundation. Loris questioned the 45-year-old agency’s reason for existing:
“That’s really what’s at the heart of the matter – transitioning away from the federal government and devolving most of those decisions down to the states,” Loris said. “The states have shown they do care about their own backyards. People don’t want to pollute their own property. States don’t want to do so either.”