Breaking A Federal Logjam: Ending An 18-month Permit in Six Weeks

Our client, a major international manufacturing company, had been stuck for over 18 months in bureaucratic limbo needing Federal agency approval for a major environmental remediation project. Every month of delay not only was costly to the company, it raised the risk that the company’s remediation plan would be challenged in court or required to be made more extensive – incurring further costs.

SMS reviewed the record of contact between the Agency, the company, and the public. We determined that the Agency may have engaged in improper contact in its public engagement. Although this conduct was unrelated to the company’s applications and technical plans, this process mistake by the Agency proved to be critical. The Agency granted the long-sought approval letter within 20 days of SMS directly contacting the Agency and raising concerns regarding possible improper conduct.

The key factor in this project was determining the weak link in the process. In the Federal bureaucracy (and any bureaucracy), mistakes in the process are more important than larger policy debates.

Wastewater Treatment Permitting: Legislating Away a Regulatory Problem

Our client faced an existential threat to its wastewater treatment business. The company was at risk of facing onerous permitting requirements due to a proposed change in regulatory guidance from an environmental agency’s technical staff. After securing a delay in implementation of the guidance, we determined that agency staff would not amend the guidance, leaving the client in regulatory peril.

We formed a coalition with business, local governments, and NGOs for a legislative remedy. The legislation subsequently passed the State Senate overwhelmingly and with a supermajority in the State House, in spite of the on-the-record opposition from the environmental agency.

In order to secure the Governor’s signature, we were able to convince key personnel in the Governor’s Office of the merits of the bill thus giving the Governor important political cover to sign the bill. Our client’s business can proceed unimpeded and without the risk of a new and unfavorable regulatory interpretation.

Our bill was one of a handful of policy bills to pass and be signed into law during the pandemic.

Changing Regulatory Policy: Fixing A Costly Proposed State Permitting Regulation

A state agency issued a draft air quality permit for the unconventional natural gas industry. The technical requirements were such that the industry would have faced prohibitive compliance costs. Our client, who had never previously engaged in government lobbying and was yet to begin production, determined that the proposed permit as drafted would pose an existential threat to their operations.

SMS engaged in a multi-pronged strategy that first delayed implementation and extend the regulatory comment period in order to gain time to change the proposed regulations. We advised our client that the political climate was such that the agency would move forward, regardless of the arguments marshalled against it. Advocacy against the permit would be futile and an alternate strategy would be necessary.

Our mantra for the client was simple: “Write your own regulation.” To that end, we developed new permit language in consultation with our client that would satisfy the main concerns of the client while allowing the state agency to satisfy the political pressure they were under. We recommended codifying efficient and environmentally-sound practices our client used but were not required under current regulations. We believed that offering the agency a fair compromise would be welcomed by its staff.

In the end the Department used much of our client’s language and included our client as part of small group of companies to review the final language before it was made public.

Breaking an Agency Stalemate: Updated Facility Air Permit Application

A critical air permit application had been caught in a loop of submit, revise, re-submit, revise again. The environmental review agency possessed substantial discretion as to both granting the permit and the requirements of the permit. The state agency kept “moving the goalposts” leading to frustration and rising costs. As in many environmental permitting situations, agency personnel had little incentive to move quickly and efficiently.

Our client was in the midst of revising their application when we were retained. We advised adding new messaging that made important economic and environmental policy points, turning the permit issue away from the technical and toward the political – where our client was on advantageous ground. In short, a permit application that had been stalled for over 6 months moved to notice of intent to issue the permit in less than 60 days with no additional revisions.