Due Process on Dams?

It's no secret that the Bush administration wants to tilt environmental rules to favor business interests. But the Interior Department has recently taken that approach to a new level of brazenness.

The issue involves environmental requirements imposed on hydropower companies when dams come up for license renewal — in other words, what steps they must take to protect fish and other natural resources.

Under Interior's proposed regulation, hydropower companies would have the exclusive right to appeal to the department's political appointees to try to change or loosen conditions imposed by more junior officials. Others affected by the license renewal — states, Indian tribes, anglers, environmental groups — could respond to the power company's arguments, but they wouldn't have any parallel right to this interim appeal.

As technical as this issue sounds, it's of enormous importance to the nation's hydroelectric power companies — and to its rivers. Most of these licenses were granted decades ago, before the advent of modern environmental laws. In the next 15 years, licenses for more than half the country's privately owned dams will come up for renewal. The conditions placed on those licenses will affect fish and wildlife, recreational boaters and Indian tribes, among others. In other words, there are a lot of parties — not just the hydropower companies — with a stake in the outcome.

To its credit, Interior, in proposing the regulation, said it "invites comments on whether the appeals process should be open to others as well." The answer is yes. There's a good argument for inserting a layer of review as multiple agencies weigh in on hydropower licenses. Under the current rules, renewal conditions imposed by Interior can be appealed in court by anyone affected, but that happens only at the end of a five-year process. There's no basis, though, for limiting the interim review to just one of those affected by the licensing decision. Interior says its proposed regulation was driven largely by the constraints of a strict timetable for making the final decision. But the claim that there's enough time to give a hearing to one side but not to others offends basic notions of due process. You might say it simply doesn't hold water.