Obama EPA’s U.P. Road Block May Be Heading To U.S. Supreme Court

An ongoing legal battle between an Upper Peninsula community and the U.S. Environmental Protection Agency could be decided by the nation’s highest court.

The California-based Pacific Legal Foundation last week filed a petition with the U.S. Supreme Court to review a lawsuit involving its client, the Marquette County Road Commission, and the EPA, over a county road project the federal agency blocked.

In 2012, the EPA blocked a plan to build a 21-mile stretch of road called County Road 595 through an undeveloped wetland in the western Upper Peninsula. The road was designed as a shortcut for heavy trucks traveling between the Eagle Mine and its Humboldt Mill in Champion, shortening the trip between the two locations by 78 miles and diverting traffic away from the city of Marquette.

The new copper and nickel mine opened in 2014. In 2011, the Marquette County Road Commission applied to the Michigan Department of Environmental Quality for a permit to build the road. The department later approved a plan for submission to the EPA.

The Obama EPA, which vetoed the plan, “offered unsupported and vague objections to the permit application,” Mark Miller, a lawyer for the Pacific Legal Foundation, wrote in a recent op-ed for The Hill. “The Road Commission attempted to remedy these objections, offering to protect and preserve 63 acres of wetlands for every acre of wetlands filled. But the EPA demanded more.”

The road commission filed its initial lawsuit challenging the EPA’s ruling in July 2015, rather than start the permitting process over again. The United States District Court for the Western District of Michigan dismissed the complaint, and the road commission's appeal to the 6th U.S. Circuit Court of Appeals was also turned back. Now after over three years of legal battles, the Pacific Legal Foundation hopes the Supreme Court will rule on what it says is agency overreach.

Lawyers for the legal foundation cite two Supreme Court rulings and the Administrative Procedures Act in their case against the EPA.

Miller argued in the op-ed that the Administrative Procedures Act allows the EPA’s veto to be appealed and reviewed in court.

He also cited precedents from recent Supreme Court rulings in Sackett v. EPA and Army Corps of Engineers v. Hawkes, which as he wrote, “suggest the Road Commission is right. In those opinions, the high court held unanimously that final agency decisions in the Clean Water Act context are reviewable in court. To hold otherwise, the court said, would allow for federal agency ‘strong-arming’ of regulated parties.”

The EPA said it does not comment on pending litigation.

The road plan had bipartisan support from the Michigan Legislature, support from the community and business groups, and the Michigan Department of Environmental Quality.

The 2004 bill that approved the building of the mine was introduced by Sen. Tom Casperson, R-Escanaba. The bill was passed with bipartisan support by the Legislature and was signed by then Gov. Jennifer Granholm, a Democrat.

Casperson told Michigan Capitol Confidential in 2016 that the EPA’s real target wasn’t County Road 595, but the Eagle Mine.

“They had clearly made up their minds ahead of time to block the road from being built. The EPA knew they were going to reject the road project from the very beginning,” Casperson said, citing correspondence, obtained through a FOIA request, between the EPA and U.S. Sen. Barbara Boxer, a California Democrat who at the time served as the chair of the Senate Environment and Public Works Committee.

Stand U.P., a group that supports the road plan, claims County Road 595 would help the environment by cutting fuel use by 464,000 gallons per year, since the 100 commercial vehicles that travel daily on the county’s roads would be driving a shorter distance.

The road, it says, “would prevent more than 4,989 tons of air pollution and greenhouse gasses every single year, reducing the air pollution” by 56 percent.