1 month ago

Let Yoopers proceed with road project

By Mark Miller Senior Attorney

President Trump won the most surprising presidential election of our lifetimes in part by promising to improve infrastructure and create new jobs. Why then does his administration stand in the way of County Road 595, a road project in Michigan that would accomplish both of those worthy goals?

Marquette County in the Michigan Upper Peninsula proposed to build County Road 595 along an undeveloped route for large trucks transporting nickel and copper ore from a mine to a refinery 21 miles south as the crow flies. The road would bypass busy city streets and the Northern Michigan University campus, the current route for these large trucks — a route nearly three times as long. The public would benefit by moving these trucks off that dangerous route and by having the new road available for all.

Michigan’s Department of Environmental Quality approved the road plan pursuant to the federal Clean Water Act. Of course it approved the plan: the road would cut air pollution, increase safety, and save over 450,000 gallons of fuel yearly for those trucks because of the significant reduction in the driving distance. Indeed, both houses of the Michigan Legislature passed resolutions backing the road, noting that building a direct route for trucks from the mine to the refinery would conserve resources and create hundreds of needed jobs.

Yet federal EPA regulators have blocked the plan for the better part of the last decade, purportedly because the road would impact wetlands. To make matters worse, these faraway EPA bureaucrats in Washington, D.C., and Chicago refused to work with local Michigander officials to address the EPA concerns. Local officials offered to protect over 26 acres of wetlands for every one acre of wetlands impacted by the project — ‘not enough,’ said the feds from their distant vantage points.

No matter what the locals offered, the EPA refused to budge. And the change in presidential administration has not led to a change in EPA policy. The EPA careerists intent on stopping this road project have apparently found approval from those charged with enforcing the Trump mandate at the EPA, up to and including EPA head Scott Pruitt.

Attorney General Jeff Sessions and the Department of Justice, with EPA authority, continue the fight against the road in the courts. The DOJ argues the courts do not even have the authority to review the EPA’s highhanded overruling of Michigan’s decision to approve the road project. Congress gave that authority to Michigan (and any other state that sought the authority) in the Clean Water Act, and the EPA cannot arbitrarily and capriciously overrule that approval. But the EPA and the DOJ are in court, right now, arguing that EPA’s decision to veto the road project, no matter how arbitrary, cannot be challenged.

Last year, a local federal court actually agreed with the government and blocked the county from obtaining judicial review of the EPA decision. The court said the county should work up a revised proposal, send it to the federal Army Corps of Engineers instead of the state of Michigan, and start the long and expensive permit process all over. That “revised proposal” would take up to two years to be reviewed and cost hundreds of thousands of dollars of Marquette County tax money, but that did not trouble the court or the EPA. Apparently wasting taxpayer money is not a significant federal concern.

The court’s decision was wrong. When agencies like the EPA make final decisions that affect the ability to use property, the injured have a right to sue and seek an opinion from the courts about the legality of those agency decisions. Recent Supreme Court decisions have said this time and again. The courthouse doors are open to challenge arbitrary federal decisions; otherwise, we may as well return to the rule of kings.

Marquette County’s Road Commission has taken the case up on appeal. The appeals court will likely set the case for oral arguments later this year. That’s all well and good, and the county should win the case before that court, and, if not there, then at the Supreme Court.

But the administration should not force Michigan to wait any longer for long-delayed County Road 595. President Trump should instruct the EPA to immediately settle its litigation with the Road Commission and allow the urgently needed road to be built. This would both deliver on his campaign promise, and allow President Trump to send a signal to the EPA bureaucrats that job-killing is no longer part of their job.

Mark Miller, a senior attorney with Pacific Legal Foundation, represents the Marquette County Road Commission on appeal at the Sixth Circuit.

Published by The Detroit News

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Marquette County Road Commission v. U.S. Environmental Protection Agency

The Marquette County Road Commission in Michigan’s upper peninsula, wants to build a road through some undeveloped land to create a short-cut for heavy-duty trucks transporting ore from a local mine to its processing facility. The state environmental quality agency agreed, but the federal EPA vetoed the county’s permit application for vaguely stated “environmental reasons” even though the county planned to protect 26 acres of wetlands for every one acre of wetland filled by the project.

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