In August 2015, an Environmental Protection Agency contractor caused 3 million gallons of toxic mine waste to enter the Animas River while conducting an arguably unnecessary and undeniably risky site investigation of a mine that had been closed for nearly a century. This was the worst water-based pollution incident since the BP oil spill, and the EPA compounded its error by failing to communicate the problem in a timely fashion to the communities downstream.
Residents in that part of southwestern Colorado were especially upset because they had opposed EPA's attempts to turn their region into a Superfund pollution disaster area. EPA seemed determined to press forward in messing with the mine, and the result is history.
Ever since, the agency has been dragging its feet against paying the people it hurt by polluting the river. On Friday, the agency officially staked out its position on the matter, stating that it will hide behind the Federal Tort Claims Act to avoid responsibility for up to $1.2 billion in administrative claims brought against it:
When passing the FTCA, Congress wanted to encourage government agencies to take action without the fear of paying damages in the event something went wrong while taking the action. So the act does not authorize federal agencies to pay claims resulting from government actions that are discretionary – that is, acts of a governmental nature or function and that involve the exercise of judgment.
Because the agency was conducting a site investigation at the Gold King Mine under the Comprehensive Environmental Response, Compensation, and Liability Act, the agency's work is considered a "discretionary function" under this law. Therefore, the circumstances surrounding the Gold King Mine incident unfortunately do not meet the conditions necessary to pay claims.
The Federal Tort Claims Act, which was passed in 1946, offers a means for people to sue the government, which otherwise would be shielded by sovereign immunity. In this case, EPA is arguing that its decision is of a specific kind where it can offer no recourse to the people whose livelihoods or health it has damaged. This is by no means a sure thing, and members of Congress from both parties have already criticized the agency's self-absolving interpretation of the law.
But that isn't the worst part. To add insult to injury, EPA's release on the matter echoes the words of EPA Administrator Gina McCarthy from around the time of the spill: "The EPA has taken responsibility for the Gold King Mine incident."
To the bureaucrat's mind, it is supposed to be enough that the EPA has paid other government agencies to come in and conduct the cleanup, and then spent 16 months dragging out the reparations process, rendering its decision at the least politically inconvenient moment — once the election was over and Obama was about to leave office.
But in exactly what sense has the EPA taken any actual responsibility? There were no criminal charges filed. No one was fired from the agency for the lapse of judgment. And now there won't be any monetary damages paid out, either, unless either the claimants succeed in a costly longshot of a lawsuit or else (more likely) Congress and President Trump step in to intervene.
The EPA has taken responsibility for approximately nothing. But it has finally succeeded in creating the new Superfund site it wanted. It really does make you wonder about the agency's constant agitation for greater authority.