Gov. Mark Gordon backed the independence of the Environmental Quality Council last week. In a time when the body is increasingly the subject of political scrutiny and recently was the subject of a court ruling that could diminish its power, Gordon said his own stint on the citizen-oversight board formed his view of it.
The Republican governor is a former chairman of the EQC — a seven-member body appointed by the governor to oversee the Wyoming Department of Environmental Quality. His tenure leading the council was marked by a high-profile dispute with then-Gov. Dave Freudenthal which also in its time, sparked concerns for the panel’s autonomy.
“Having that body is always valuable,” Gordon said, “for citizens to feel that they actually have access to people who appreciate their circumstances.” The council’s decisions are of course subject to court challenges, he said, but the body’s independence is important.
Over its history, the EQC has fielded legislative and political challenges to its authority, often on the heels of decisions that don’t match the energy industry’s desires.
The EQC in recent years has waded into two notable coal mining permit fights. In September 2017, it ruled that Ramaco Carbon’s mine permit application was incomplete. DEQ director Todd Parfitt subsequently denied the permit and sent Ramaco back to the drawing board. Ramaco sued following the decision, and a Laramie County District Court Judge ruled in the company’s favor last month. The ruling, if it stands, could impact the council’s authority to check DEQ decision making.
In May, the EQC again ruled that the DEQ had not sufficiently examined a coal company’s track record — this time delaying a mine permit transfer from Contura Energy to Blackjewel. The delay became pivotal in Blackjewel’s turbulent bankruptcy, which began a little more than a month later.
The back-to-back rebukes of coal companies and environmental regulators has thrust the council, which normally operates in relative obscurity, into the public eye.
Whether in court or back on the floors of the Legislature, debate over the EQC’s role is likely to continue, making Gordon’s support for the council, and his history with it, noteworthy.
Gordon has taken stands over the separation of powers in Wyoming before. He sued other politicians over constitutional issues when serving as state treasurer, and twice chided the Legislature for overreaching during his first legislative session as governor.
Boom time water fight
Gordon’s own political feud while serving on the board helped strengthen his views of the EQC.
In 2006, when Gordon was serving as chairman of the EQC, Wyoming was riding high on a coal-bed methane boom. The now infamous rush to trap natural gas from coal seams in the Powder River Basin created a number of environmental concerns, some still unresolved today. One prominent worry that emerged among landowners was the volume and condition of water being discharged from coal-bed methane wells.
To harvest the gas, operators pumped groundwater up from coal beds that are also aquifers, according to the website WyoHistory.org, which is maintained by the Wyoming State Historical Society. Keeping the production process cheap required dumping saline-loaded groundwater onto the landscape without treating it.
“Suddenly there was a lot of salty water flowing on a landscape that receives little rain and snowmelt each year,” former WyoFile editor Dustin Bleizeffer wrote in an account on WyoHistory. “It resulted in salt loading that challenged existing grasses and created havoc for some agricultural operations.”
The state, permitting coal-bed methane wells at a rapid clip, largely abstained from regulating those water discharges, Bleizeffer wrote.
Gordon’s EQC, however, took up a rule-making petition brought by the Powder River Basin Resource Council, whose landowner members sought relief from the salty water. The mere decision to take up the petition landed Gordon in hot water.
Then-Gov. Freudenthal and his attorney general, Patrick Crank, suggested publicly that the council wouldn’t have legal standing to pass the rule, according to newspaper reports from the time that were archived by the Western History Center at Casper College.
Freudenthal, like most Wyoming politicians at the time, was broadly supportive of the coal-bed methane industry, which was filling state coffers and creating jobs. Crank’s office had even sued Montana over attempts by that state’s environmental regulator to police discharge water flowing over the border.
The same week he suggested the council was legally out of bounds, Freudenthal also sent a letter to the Legislature’s Joint Appropriations Committee asking lawmakers to defund the agency, according to news reports from the time. The EQC’s staffing needs could be provided for by DEQ, the agency it is supposed to oversee, Freudenthal argued.
Freudenthal denied the funding move was intended to intimidate the council away from a ruling that could slow an energy boom. Anyone making such a conclusion was “spending too much time looking for spooks in the night,” he told a reporter at the time.
Gordon told the press that Freudenthal’s funding move made for “an awkward time.”
He gave the governor the benefit of the doubt, he said at the time, that the stab at EQC’s funding was an unrelated budgetary concern.
“I don’t know how to respond,” he said. “I don’t want to take it as a political issue because I’m not sure it is.”
Ultimately, the EQC narrowly passed the rule. As chairman, Gordon cast the deciding vote. The rule, however, never went into effect. Freudenthal overruled it, with an authority that Gordon said “was never in doubt.”
Freudenthal did not respond to a message left at his law office on Friday.
Though Gordon left the council shortly thereafter, the experience left an impression on him about the council’s role, the governor told WyoFile.
“In that particular water case I thought there was a technical decision which the EQC was responsible for,” he said. Freudenthal’s subsequent decision to overrule the council had different motivations: “It was a political decision which the elected people were responsible for making,” Gordon said.
Following the water discharge vote, Gordon and two other council members’ terms ended. Freudenthal made three new appointments, which drew criticism from the PRBRC for their ties to industry.
Things change, stay same
The EQC’s legal standing to make certain decisions faces fresh challenges today, and some politicians continue to take aim at its funding.
A recent court ruling related to the EQC’s 2017 Ramaco decision could have lasting effects on the body’s authority if it stands.
After the EQC ruled the company’s mine permit application was incomplete, Ramaco’s lawyers sued. On Oct. 25, Laramie County District Court Judge Catherine Rogers ruled that the EQC did not have the authority to reject Ramaco’s permit, and instead could only offer the DEQ director its opinion.
The wording of the judge’s decision challenges the EQC’s weight as an independent decision-making body. One Ramaco lawyer called the ruling a win for industry.
“In my opinion, the decision puts new hope into new coal mining and future jobs in Wyoming,” Tom Sansonetti, a Holland & Hart attorney representing the coal company, told Wyoming Public Media.
The PRBRC will appeal the ruling, attorney Shannon Anderson told the Joint Minerals, Business and Economic Development Committee last week. Attorneys for other parties in the case, which include a rival coal company and a landowning family acting independently from the PRBRC, were either unreachable or declined to comment on whether they’d appeal.
Like Gordon, Wyoming Attorney General Bridgett Hill is a veteran of the EQC. She served as its legal counsel, and it is where she met the man who ultimately appointed her to the AG’s seat, Gordon said. The AG’s office now provides legal counsel to the EQC, as a result of a rule change passed last year.
Because the AG also provides legal counsel to DEQ, Hill’s office will soon make a decision on whether to join the PRBRC in appealing the judge’s decision on the Ramaco case. The EQC itself won’t decide whether to appeal, Executive Director Jim Ruby said.
Gordon had not consulted with the AG’s office about whether it would take up the appeal, he said in the Nov. 6 interview. The DEQ is waiting to see how other parties proceed, an agency spokesperson told WyoFile.
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Politically motivated or not, Freudenthal’s suggestion of defunding the EQC 11 years earlier was echoed during the 2018 legislative session when lawmakers suggested cutting the agency’s budget and funding it out of DEQ’s.
The pressure didn’t just come from elected politicians. One EQC member with ties to oil and gas spoke with lawmakers at the time, raising concerns by some that he was lobbying against his own council, WyoFile reported.
Some of the lawmakers pushing the budget cut said it was fueled by fiduciary concerns, not anger at the council stopping the opening of the state’s first new coal mine in decades. But during floor debate on the budget amendment, other lawmakers shrugged off such distinctions.
“[The DEQ] spends multiple years and companies spend multiple years and probably multiple to tens of millions of dollars and our main agency comes in and basically is happy with the work,” then Majority Floor Leader Rep. David Miller (R-Riverton) said. “Then all of a sudden [the EQC] comes in and is influenced by some of the radical groups that pretty much want to stop everything.”
“So yeah, we’re making a statement here,” he said.
Other lawmakers pushed back on tying funding to an independent body’s decisions. “When there’s a decision you don’t like,” Rep. Dan Zwonitzer (R-Cheyenne) said, “what you do is you come and say ‘well now we’re watching you and we’re going to defund you for a year just to let you know we’re watching you.’”
Gordon, who is in the midst of preparing his first two-year budget proposal to the Legislature, said the body requires autonomy to function properly.
“The EQC needed to be a separate independent agency [so] that they could function outside the bounds that might be put on it by any particular administration,” Gordon said last week. “They are really charged with weighing evidence carefully and making an appropriate decision.”
Though it occasionally finds the spotlight with high-profile decisions, the EQC more often toils along without controversy. The body offers a forum for both citizens and companies to voice concerns about the DEQ’s regulation or industry action.
On more difficult cases, the body holds “contested case hearings.” The proceedings are similar to trials, with attorneys examining and cross examining witnesses in front of the council. But it’s “a little less formal, a little more relaxed,” Isaac Sutphin, a Holland & Hart attorney who represented Contura during the Blackjewel permit hearing, told WyoFile in May. “You don’t have to worry about all of the rules that govern a courtroom setting.”
Gordon recalled one complaint over industrial noise out of Riverton. “Our recommendation was can you stop banging your bucket to clean it and the issue went away,” he said. “Most of the time when I was there we had those kinds of cases they were resolved often just by making the right kinds of suggestions,” he said. The coal-bed methane issue was the most controversial he recalled, and perhaps the only time the body made newspaper headlines during his tenure, he said.
A short note to share my own experience with the EQC in regards to a Bentonite Mine planned for a residential area outside of Cody. Our subdivision, of which I am the elected manager, raised an objection to the BLM-DEQ permit over the issue of covering the truck loads of bentonite that would be hauled from the mine past our subdivision and down a residential county road. This is of concern to the residents of this area in that bentonite is either messy in wet weather or dusty in dry weather. We only wanted an answer to our concern that the loads should be covered but were required to go through the entire hearing process to have our concerns answered. At great cost to the state we spent a day at the hearing (not even a lunch break) presenting our concerns to the council with the well funded company and their attorneys arguing against us. Numerous area residents attended to support our cause at the hearing held not in Cody but in Powell. Ultimately the Council sided with the company to not require trucks to be covered and gave the company all they wanted. Our health and safety concerns were not addressed and it was apparent to us that the decision was pretty much decided in advance of the hearing. Council members present seemed to be energy related and made it clear they were only concerned about the air over the mine site and not the air over our neighborhoods. Wind was not a factor to them. Our conclusion was that at great expense this hearing was more concerned about the needs of the company and their desire to make money over the health and welfare of the average citizens who live next to this mine. Just to let you know we were not impressed with the EQC.