We have all seen the protests in Peñuelas and Fortaleza by a group of activists intent on stopping the deposit of coal ash in a landfill and the Courts’ rejection of challenges to the legality of said deposit, including the latest denial by the Appellate Court of a reconsideration on its ruling reversing an injunction prohibiting this activity. We have also seen populist politicians respond to those protestors by reviving Senate Bill 340 to prohibit said deposit. Given all this turmoil I would like to discuss the legal and economic ramifications of these acts.
Puerto Rico’s environmental policy is entrusted to the Puerto Rico Environmental Quality Board by the Legislature to put into effect said policy. This commonsense approach, however, has been put in jeopardy by some municipalities intent on putting in effect policies the EQB has rejected.
AES buys coal in Columbia and burns it to generate approximately 16% of the electricity sold in PR. The burning of this coal produces two types of ashes: bottom ash and fly ash. These types of ash are collectively referred to as coal combustion residuals. AES produces approximately between 200,000 to 250,000 tons a year of this ash, also called coal ash.
The Environmental Protection Agency (EPA), the federal agency entrusted by Congress to regulate these substances, considers this ash a “non-hazardous solid waste.” The Federal EPA has delegated the issuance of permits for the disposal of said non-hazardous solid waste to the Puerto Rico Environmental Quality Board (EQB), which is in accordance to the island’s environmental public policy. Several companies in PR have permits issued by the EQB based on the regulations approved by the EPA. In other words, the local EQB, as the agent of the EPA, puts in effect federal environmental policy and Puerto Rico’s public policy as to environment.
Peñuelas and Humacao, however, have opted to illegally bypass federal and Puerto Rico law and enacted ordinances that directly conflict with them. The municipalities have also sued several companies that use this ash in landfills as part of their permits. In one case, the Court of First Instance issued the injunction against the deposit of ash in landfills but the PR Appellate Court determined that the ordinance of the Municipality of Peñuelas had been issued in violation of due process and was invalid. Another Court of First Instance this time in Ponce determined that the ordinance was invalid since it was contrary to PR law and public policy. At the same time, another Court of First Instance issued an injunction from the deposit of the ash reasoning that the issue was before the PR Supreme Court, although plaintiff had not asked for it but rather an injunction to obstruction to the deposit of ash. Fortunately, the Appellate Court reversed this decision this November. Also, the ordinance issued by the Municipality of Humacao is being challenged in the Court of First Instance.
As stated before, the controversy in one of these cases is before the PR Supreme Court but it has yet to issue a certiorari. Strangely enough, although these companies have all their EQB permits; neither the agency nor the PR Government has filed amicus curiae with the Supreme Court. The reason? Both Peñuelas and Humacao are headed by powerful PPD mayors and consistent with the García Padilla’s administration’s practice of preferring politics to sound governmental policy. If you are a PPD mayor, Governor García Padilla will look the other way if you do anything wrong, irrespective of the damage to PR. Moreover, there are at least 20 PPD municipalities with landfills that are documented as polluting groundwater, soil and air but have faced no action by AGP’s EQB and the press has all but ignored their protest but thoroughly covered the Peñuelas protests. Nor is there a mention by the Governor or the press that ECL and PVL are documented as compliant with regulations and non-polluting on the community in Peñuelas.
This situation has profound implications for PR’s economic development. PR’s environmental public policy is put into effect by the EQB, who has issued permits pursuant to federal regulations to these companies. These municipal laws are not only preempted by federal law, but are illegal since they are in conflict with the clear PR public policy evidenced by the permits issued by the EQB. If the Supreme Court were to allow municipalities to stop the application of federal and Commonwealth policy in their demarcations will not only further delay any economic growth we may experience but will also mean the balkanization of environmental policy of the island. The mayors of Peñuelas and Humacao are shamelessly spending public money to favor some of their PPD cronies in these cases. If the Supreme Court permits this, what will prevent from other municipalities from favoring their “friends” by blocking companies with proper permits from operating in their demarcations? It is now up to the Supreme Court to stop this nefarious practice.
Finally, populist senators are pressuring the Governor to include Senate Bill 340 in the Extraordinary session. Even if unsuccessful, it has come to my attention, that PNP senators such as Larry Seilhamer are contemplating support for the bill. The EPA and EQB regulations on coal ash come after hundreds of hours of scientific study and commentary. Politicians cannot be swayed by protestors alone. PNP leaders will have to decide whether to support the rule of law and US environmental protection regulations and EQB statements that the ash is non-hazardous or join the independentistas to garner a few votes at the cost of the rule of law and economic growth of the island.