How a Michigan County Road Got Stuck in Regulation Purgatory

Building a direct path to a new mine makes perfect environmental sense, but the EPA hasn’t budged.

By Mark Miller and Mike Pattwell in The WSJ. Mr. Miller, a managing attorney with Pacific Legal Foundation, and Mr. Pattwell, a litigator with Clark Hill PLC, are representing the Marquette County Road Commission at the Sixth Circuit.

"A good example of a shovel-ready project trapped in regulation purgatory is Michigan’s County Road 595, which has been blocked for years by the Environmental Protection Agency.

The project has its roots in a “eureka” moment eight years ago. A large deposit of nickel and copper was discovered in the state’s Upper Peninsula at what is now known as the Eagle Mine. This presented Marquette County with a new economic opportunity, but also a dilemma. The mine is only 22 miles from the nearest refinery as the crow flies, but the trip is nearly three times as long via existing roads. The usual route would send processions of heavy, noisy trucks through commercial and residential areas in small towns, as well as along the edge of campus at Northern Michigan University.

The proposed solution was to construct a new county road, a direct path from the mine to the mill. That would allow the trucks to bypass busy city streets and groggy college students.

State and local officials in both parties broadly support the project, since they see it as critical for the community’s safety and environmental health. Both houses of the Michigan Legislature have even passed resolutions backing County Road 595, noting that the direct route would conserve resources, while building it would create jobs.

The problem is the federal permits. In 2012, the state’s Department of Environmental Quality announced it intended to approve the new road, which complied with all federal and state laws. That’s when the Obama administration stomped in.

The project required a wetland-fill permit, which the EPA vetoed in December 2012 with a vague warning about dangers to the environment. Agency officials have never provided the kind of details that would allow their putative concerns to be objectively assessed, but they have stuck to their objections tenaciously. The county has suggested many compromises: In October 2012, it offered to preserve 26 acres of wetlands for every acre that the project affected. The EPA refused."

"In U.S. Army Corps of Engineers v. Hawkes (2016), the justices unanimously held that when federal regulators label property as “wetlands,” the affected parties have an immediate right to challenge that designation in court."

"The irony is that the EPA is blocking a project that would be environmentally beneficial. “When trucks can travel 22 miles one way rather than 50-plus miles one way, that’s a savings of almost 500,000 gallons of fuel annually,” Jim Iwanicki, the engineer for the county road commission, told Marquette’s legal team last fall. “On top of that savings of fossil fuel, County Road 595 would significantly reduce the amount of carbon dioxide those trucks are putting out, since they’d be driving 1.5 million miles less a year.”"