Idaho Court Victory Musings
How Congress Gets Defeated Part Two
by Nina Bell • October 6, 2021 •
In Part One, I explained the genesis of EPA’s obligations to keep water quality standards for toxics updated, to reflect the latest science on what we know can hurt us and other living things.
In July, a federal court in Idaho read EPA the riot act on mercury.
We all know mercury is bad. EPA knew it 17 years ago when the agency first told the Idaho Department of Environmental Quality to not proceed with its plan to yank its mercury standard for the protection of salmon. EPA knew it 13 years ago when the agency disapproved Idaho’s having yanked the standard.
And that disapproval meant that the responsibility was on EPA to fix it.
But in front of the federal judge in Idaho, EPA argued that it had no obligation to fix the problem because the removal of the new standard had the result of popping back to life Idaho’s old mercury standard from 1996, and that should be good enough.
That’s despite the fact that EPA would never approve the old one today. That’s despite the fact that the expert fish and wildlife agencies said in 2014 that even the new standard wasn’t good enough to protect salmon. (NWEA had to sue the agencies to get that opinion finalized.)
Ironically, the judge’s decision comes just at the exact moment when EPA was required to have fixed the mercury standard according to the fish and wildlife agencies, an action it apparently never intended to take. Put another way, not only was EPA willing to ignore the Clean Water Act, but it was actively ignoring the Endangered Species Act too.
It is hard to fathom why EPA thinks it doesn’t have to do anything to protect Idaho’s fish from mercury poisoning.
As the court found, “For nearly 13 years since its disapproval of Idaho’s revision, the EPA has neither published nor promulgated a water quality standard for mercury in Idaho. And, even if the EPA were to publish and promulgate a standard today, no argument can be made that doing so would be prompt.”
In further irony, the court cited a Trump Administration memorandum to the effect that “the EPA has a history of being neglectful of its CWA duties.” Indeed.
And then the court rejected EPA’s final plea that it do nothing to protect Idaho salmon from mercury poisoning: “As a last resort, the EPA turns to the parade of horribles that it speculates will ensue if the Court interprets the CWA in the manner it does today.” The court rejected the parade.
One has to wonder why EPA fought this battle to protect its right to do nothing given the clear Congressional directive that it act. What has changed so much between 1992, when EPA showed states that it would not tolerate a failure to protect the nation’s waters from toxics, and the last decade where it would rather spend resources fighting a court battle than actually do the right thing?
The answer lies at least in part in understanding that EPA is not just the “Trump EPA” (admittedly destructive) or the “Obama EPA” or the “Biden EPA.” Instead, EPA is an enduring bureaucracy with a culture of foot-dragging and avoidance. The political appointees come and go but the entrenched management has no “get up and go.” They simply manage their departments to stay in place.
