Terry Gerton This is a fascinating topic. We hear a lot about permitting and how slow government permitting is. And this administration has made faster permitting one of its key tenants. But you’re talking about EPA section 404C. Talk to me about what that authority is and where it fits in the larger permitting debate.

Myron Ebell Under the Clean Water Act, the Army Corps of Engineers does the environmental permitting for projects that require dredge and fill permits. So anything that moves dirt or rock, especially in wetlands, so things like pipelines, mining projects, other infrastructure, these all require a permit. And that’s what the Trump administration is trying to speed up and get projects approved faster and with less complicated environmental impact statements. Congress, of course, is trying to pass permitting reform, but that’s blocked in the Senate. But there’s one thing that the Trump administration is leaving out or overlooking, and that is the fact that the EPA can veto these Army Corps of Engineer permits under Section 404C of the Clean Water Act. Not only during the permitting process, they can veto those projects after they have been approved, permitted, and are in construction. So this is a huge threat to investors and companies that want to build multi-billion dollar projects.

Terry Gerton Walk me through how this is different from the normal environmental permitting process. A lot of people will be familiar with NEPA. Takes a long time to do and delays the start of projects. This feels different.

Myron Ebell It is, because normally when you’re issued a permit at any level of government under any statute, once that project is permitted, you have a permit and can go ahead. Now, of course, that permit could be canceled if you violate the terms, if you don’t follow what you’ve agreed to. But under the Clean Water Act, there’s this odd thing that Congress was very sloppy, I believe in writing it back in the early 1970s, which they didn’t set any limits on when EPA can veto the project. So it can be at any point, even after the investments have been made and the construction workers are on the ground and the project is being built. So this kind of regulatory uncertainty is just a huge disincentive to investors and companies to go through the long NEPA process to get a permit. And, you know, it hasn’t been used — people say, well, it’s only been used once or twice. That’s true, but as we see the environmental movement gaining more and more control over the Democratic Party and becoming more and radicalized against fossil fuels in particular, we can see that, yeah, they’ve only used it once in the Obama administration, but it doesn’t take using it very many times to drive out investment in all the other projects. If a new administration came in and we had somebody who is of the wing of a Senator Whitehouse (D-R.I.) Or AOC as the EPA administrator, they could quickly retroactively veto a couple of projects, and then who else would even start the process? It just, you know, American investors are not stupid. They want to be able to make money after they get their project, after they’ve risked all this money. They wanna be able make money, not say, oh, well, you’ve already committed $500 million, but sorry, and you’ve got the permit, but now we’re going to veto the project and you’re left sitting on your hands.

Terry Gerton Myron Ebell is senior advisor to the Fix the EPA Veto Coalition. This issue is playing out on the ground in Alaska right now at the Pebble Mine. Walk us through kind of what’s happening.

Myron Ebell The Pebble mine, the story which I’ve been involved in for it seems like decades now, the Pepple Project is a huge copper, gold, molybdenum, rare earths and other things mine. It’s a massive deposit. Interestingly, it’s the Trump administration that has gone along with the opposition in this and tried to block it. But they haven’t exercised a retroactive veto on it. They’re contesting the permit in court that the company has appealed the denial of the permit by the Army Corps of Engineers, and the company is in court. Now, let’s assume that the court decides that the Army Corp of Engineers has to issue the permit. The environmental impact statement was adequate, and they’ve invested $150 or $200 million dollars in all the studies. Then the Trump administration or a future administration could then veto the project even after all these decades of effort by the company to get the mine off the ground or in the ground.

Terry Gerton The EPA and environmental groups might say this authority exists precisely because some of these projects later pose extraordinary risk. Why shouldn’t the agency retain that backstop, or is there some other process that you would recommend as a remediation, should environmental issues occur after the permitting process?

Myron Ebell Some of your listeners probably have more expertise on this than I do, but I believe that permits, once they’re issued, have to be honored by both parties. So if the builder of a project violates the terms of that permit, then it could be canceled or modified. But I don’t quite understand this argument about new threats coming up. I think the argument really is, well, this administration didn’t adequately consider the climate impacts of fossil fuel emissions, and therefore now we’re going to apply that. Well, I’m sorry. That bus has already left. If the project has been permitted after all of the authorities and all the litigation that goes on with any big permit had decided that the climate impacts are not sufficient to block the project, then they can’t decide later, oh, but we’ve changed our mind that those impacts are so dire that we have to cancel it. I just don’t get that. I think i ()f the public decides that greenhouse gas emissions are a problem, then Congress can change the laws and we can go on a fossil fuel diet. Up until that time, I don’t think we’re going to do it.

Terry Gerton If the administration and Congress agreed with you about how to fix the EPA veto, what specific changes would provide more certainty here without eliminating environmental protections altogether?

Myron Ebell Well, the best thing to do would be for Congress to change the law. But as you know, there’s an impasse on anything like this in the Senate. So Chairman Mike Lee (R-Utah) has to negotiate with Senator Heinrich (D-N.M.) And Whitehouse. And so I don’t see Congress fixing it by actually doing what’s in other statutes, which is, if there is a veto authority, it has to have time limits and constraints and sideboards. What the Fix the EPA Veto Coalition, of which I’m a senior advisor, is trying to do is to convince the Trump White House that this problem, this threat to investment in major infrastructure projects can be improved through the regulatory process. And this was actually undertaken, it was started in the first Trump administration by EPA, but it never got anywhere, and we think it’s time to pick it up again and finish it, which is a new rule that sets limits on the veto authority. Now, you can say, oh, but a future administration could undo that rule. Yes, but that takes time. That can be litigated, too. And in the meantime, the projects that are at least in the pipeline that are being built can be finished and in operation. And then if the EPA wants to veto that project that’s now in operation, they can then pay the company a very large sum of money to wind it up.

Terry Gerton Do you have a sense that the EPA is going to take up that regulatory action?

Myron Ebell I hope so, because I think it’s fairly obvious. I don’t think, you know, this is something that the energy and building community is very aware of, this threat, this huge regulatory uncertainty. And so I think we have a number of business associations and nonprofit groups that belong to fix the EPA Veto Coalition. And I hope that the White House and the EPA will recognize that, hey, they pointed out something that’s obvious, and there’s a lot of support for, I don’t want to say fix it because the Congress can do that, but improve it, put limits on it that would take some time for a future administration to undo.