An amendment that passed in last year’s legislative session prevents the public from challenging state decisions on an array of issues, most notably the environment.
Great Basin Mine Watch, a public-interest group that monitors mining pollution in Nevada, discovered that the Big Springs mine near the North Fork of the Humboldt River was leaking toxins. GBMW reviewed the mine’s permit, which was issued by the Nevada Division of Environmental Protection, found that it didn’t meet environmental standards and decided to take the matter to court.
“It didn’t cover certain areas and didn’t limit pollution,” said Nicole Rinke, an attorney working with GBMW. “There was essentially nothing for them [NDEP] to enforce.”
The watch group appealed the permit with Nevada’s State Environmental Commission on grounds that the permit did not meet federal and local environmental laws.
“Although they tend to support their own agency, we thought we had a good chance,” said Elyssa Rosen, former senior policy advisor of GBMW.
Rosen said the watchdog group was waiting for the results of the hearing when it received a memo from the SEC claiming that the group had no standing. “Standing” is a legal term that essentially means a party has a legal right to bring a lawsuit. To have standing, a person or party must be sufficiently affected by the matter before the court.
During the SEC hearing, NDEP cited an amendment to Nevada’s Administrate Procedures Act that seemed to say that the group could not appeal the permit. The SEC referred the information to Attorney General George Chanos. In his written opinion, he agreed that GBMW had no standing to appeal the permit.
“We were waiting almost a year for a hearing with the SEC,” said Rosen. “Just a few days before, we got a memo saying that we should reconsider the appeal.”
The SEC made its final decision on July 6, and following the counsel from Chanos, dismissed the appeal.
Dante Pistone of NDEP said that once the amendment came to the agency’s attention, they were compelled to follow it.
“We have to obey the law,” Pistone said. “The attorney general has made it clear that this law takes precedence.”
The amendment states that permits can be challenged only by someone who can financially gain from the permit being issued or financially lose from the permit not being issued.
“We were like, ‘Wait a minute, what is this?’” said Rosen. “That basically means the same person—the permitee. There is a problem with the tendency of state agencies to support big industry.”
Rosen said that the legislative session moves extremely fast; and that, combined with Great Basin Mine Watch’s limited resources, allowed the major loophole in the amendment to be overlooked.
During the 2005 session, only one legislator, Pete Goicoechea, R-Eureka, mentioned that this amendment could be used to block interest groups. But his statements were made in a committee in which not all legislators were present.
Assemblywoman Sheila Leslie, D-Reno, who voted for the bill, said she wasn’t aware of the broad consequences it would have.
“I thought it had to do with the licensing of independent insurance agencies, but it applies to any administrative appeal,” said Leslie. “It has unintended consequences that take away the public’s rights.”
Lobbyist James Wadhams, the chief proponent of the amendment, said in a March 28 Associated Press story that he’d worked on the amendment on behalf of independent insurance agents, but his ties to the mining industry leave some skeptical. (We attempted to contact Wadhams for this story, but he could not respond because he was on vacation.)
Bob Fulkerson of Progressive Leadership Alliance of Nevada said he believes Wadhams deliberately tricked legislators to further his big-business clients’ interests.
One of the biggest problems with the amendment, according to Rinke, is that it seems to contradict federal statutes imposed by the Clean Air and Clean Water acts, which require the public to be able to appeal improper environmental conduct.
Rosen, who left Great Basin Mine Watch on July 7, said there are two courses of action left: making changes through state law and appealing the decision to the federal Environmental Protection Agency. At the state level, Assemblywoman Leslie has said she will try to change the law in next year’s legislative session.
Rosen also said that GBMW is sending a petition to the EPA to revoke state authority to issue permits because of Nevada’s lack of public access to the permitting process. Rosen said Nevada could possibly lose its right to issue permits, which would bring industrial operations to a standstill.