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EPA and Congress Wrangling Over Legality of New Colorado Office

Sept. 15, 2020, 7:46 PM

The EPA and congressional Democrats are split on whether the agency consulted lawmakers over the decision to open a new land cleanup office in Colorado—and legal scholars also disagree on whether failure to consult violates federal law.

The Environmental Protection Agency announced its new Office of Mountains, Deserts, and Plains on Sept. 2. The office, based in Lakewood, Colo., will focus especially on mining cleanup and will provide oversight, guidance, and technical assistance, the agency said.

But Sen. Tom Udall (D-N.M.) and Rep. Betty McCollum (D-Minn.) protested, writing to EPA Administrator Andrew Wheeler that the 2020 Further Consolidated Appropriations Act requires advance approval by House and Senate appropriators before any agency can be reorganized, or funds can be reprogrammed.

In an interview, EPA associate deputy administrator Doug Benevento said the relevant congressional committees had been notified in advance.

Cary Coglianese, a professor focused on administrative law at the University of Pennsylvania, said he saw a “plausible concern” the EPA may be moving funds originally slated for one use to another, contravening the 2020 spending bill.

“Ultimately, the devil really is in the details when it comes to assessing the legality of appropriations,” Coglianese said. “That’s why Congress inserted its provision in the appropriations law calling for agencies to consult with the relevant congressional committee whenever they want to reprogram existing funds.”

Norms, Not Limits

An EPA spokeswoman also shared with Bloomberg Law a letter the agency sent on Sept. 2 to the chairs and ranking members of the House and Senate appropriations subcommittees charged with EPA oversight, alerting them to the new office.

But a Udall spokesman said the committee didn’t get the letter until after the Colorado Springs Gazette that morning ran Wheeler’s op-ed announcing the change.

A McCollum spokeswoman flatly said that EPA’s “failure to seek prior approval before implementing this reorganization violates the requirements” of the 2020 appropriations law.

Eloise Pasachoff, an administrative law professor at Georgetown University, said no general law governs whether agencies can move offices. Even statutory limits like the kind invoked by Udall “are not clearly binding” because of the Supreme Court’s 1983 decision in INS v. Chadha that limits the authority of one part of Congress from binding the actions of the executive branch, she said.

The limits on such actions are “truly political and based on norms, rather than sharp legal limits,” she said.

“If Congress wants to really limit this kind of action, it should tighten up the appropriations language to move away from consultation requirements by a given committee, and instead impose clear limitations on what the agency can and cannot use its budget for,” Pasachoff said.

‘Why Not’ Move to West?

Environmentalists who have criticized the EPA’s decision to open a new office outside of Washington, D.C., don’t fully grasp the needs that Western states face, Benevento said.

The EPA has justified its westward expansion by saying the office will be closer to mine sites and more accessible to communities affected by mine pollution.

Some critics have compared the decision with other Trump administration shifts of federal workers from Washington to Western states, such as the Bureau of Land Management headquarters move to Colorado. In that case, congressional Democrats derided the move as a bid to push career bureaucrats out of the agencies, or situate them closer to the industries that stand to benefit from their work.

To Benevento, however, “the folks making those criticisms, I would argue, aren’t aware of the significance of the issues out West, and they would do well perhaps to take some time to go visit some of these sites so that they can understand that EPA over the decades could have done a better job.”

In particular, Benevento cited abandoned uranium mine cleanup projects on Navajo land in Arizona, New Mexico, and Utah; Superfund sites in Montana that have been on the national priorities list for 30 years; and abandoned mines in Colorado.

A more reasonable approach is to turn the question back on opponents of the Lakewood move, and ask them why it doesn’t make sense, Benevento said.

“Why not move functions out of Washington, D.C., when they are unique to a certain region of the country, and have that work done in that geographic part of the country?” he said. “Why not move offices where you’re required, as you are in cleanups, to work closely with communities?”

Peter Wright, assistant administrator of the EPA’s Office of Land and Emergency Management, said in an interview that the new office puts a dedicated team on the Western lands problem, thereby moving those issues up the agency’s list of priorities.

Operational Improvements

The new office will use the EPA Lean Management System (ELMS) to identify goals, measure progress, and find bottlenecks affecting workflow, according to Benevento.

ELMS is a set of activities across more than 800 metrics designed to improve the agency’s performance. The system uses wall-mounted boards to measure a team’s progress toward a certain goal, as well as weekly 15-minute group meetings for staff to talk about problems and possible solutions.

The agency is focused on environmental cleanup, but its work could have “tangential” benefits that spur economic development, Benevento said. Much of that could come from removing the stigma from polluted Superfund sites, he said.

An EPA spokeswoman said the agency is still going through the hiring process to staff the office with between five and nine full-time employees.

To contact the reporter on this story: Stephen Lee in Washington at stephenlee@bloombergindustry.com

To contact the editor responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com

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