On August 5, 2015, an EPA backhoe operator dug into a plugged gold mine high in the San Juan Mountains of Colorado to perform a repair to the plug. The mine was previously plugged to prevent the continual seepage and drainage of contaminated and acid-laced water into the downstream water courses. During the work on that day, the plug (which consisted of tons of dirt and was actually a dam) failed unleashing a torrent of polluted and life-killing acid, crud, sediment, and other pollutants into the downstream water courses. The pollution and damage reached hundreds of miles.
Damage claims were presented by farmers, recreationists, and other water users who suffered significant losses and damages from this event. Last week, the EPA, claiming sovereign immunity, told the claimants to go pound sand. The communities and their governmental representatives in including the governors of Colorado and New Mexico, the congressional delegations, and the Navajo Nation are outraged.
The United States Government is generally immune from damage claims except for those claims where it has waived immunity. The feds have waived immunity for tort claims through enacting the Federal Tort Claims Act. Thus, if the federal government doesn't promptly shovel the snow away from the entrances to one of its buildings, and a patron slips and falls on the snow and ice, the government can be sued as if it were a private citizen.
However, the government has not waived immunity for claims arising out of performing its "discretionary" functions associated with its governmental purpose--the basis for the denial of liability here. Thus, if the EPA decided to delay the repair of the Gold King plug for 30 days and fix a different mine, and Gold King failed within the 30 days, there likely would be no claim. But in this circumstance, the EPA was actively repairing to plug, and in the process of that repair, and allegedly as a result of the work, the plug failed. The claimants allege that the repair was negligent and the EPA people had ample facts to know that the manner of doing the repair presented an unreasonable risk.
I don't think the EPA denial of liability based on a discretionary act is sound. Move the whole process back a few hours and think about what the EPA would claim if the backhoe operator got in a wreck on the highway while he was hauling the backhoe to the work site. That would still be associated with the discretionary action of repairing the plug. I don't see a material difference between negligent operation of the vehicle on the way to the work site or negligent operation of the equipment at the work site.
Finally, think how hard the EPA, the DOJ and the whole Obama administration came down on BP over the Deepwater Horizon failure. Gold King isn't much different.
Damage claims were presented by farmers, recreationists, and other water users who suffered significant losses and damages from this event. Last week, the EPA, claiming sovereign immunity, told the claimants to go pound sand. The communities and their governmental representatives in including the governors of Colorado and New Mexico, the congressional delegations, and the Navajo Nation are outraged.
The United States Government is generally immune from damage claims except for those claims where it has waived immunity. The feds have waived immunity for tort claims through enacting the Federal Tort Claims Act. Thus, if the federal government doesn't promptly shovel the snow away from the entrances to one of its buildings, and a patron slips and falls on the snow and ice, the government can be sued as if it were a private citizen.
However, the government has not waived immunity for claims arising out of performing its "discretionary" functions associated with its governmental purpose--the basis for the denial of liability here. Thus, if the EPA decided to delay the repair of the Gold King plug for 30 days and fix a different mine, and Gold King failed within the 30 days, there likely would be no claim. But in this circumstance, the EPA was actively repairing to plug, and in the process of that repair, and allegedly as a result of the work, the plug failed. The claimants allege that the repair was negligent and the EPA people had ample facts to know that the manner of doing the repair presented an unreasonable risk.
I don't think the EPA denial of liability based on a discretionary act is sound. Move the whole process back a few hours and think about what the EPA would claim if the backhoe operator got in a wreck on the highway while he was hauling the backhoe to the work site. That would still be associated with the discretionary action of repairing the plug. I don't see a material difference between negligent operation of the vehicle on the way to the work site or negligent operation of the equipment at the work site.
Finally, think how hard the EPA, the DOJ and the whole Obama administration came down on BP over the Deepwater Horizon failure. Gold King isn't much different.
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