WASHINGTON, D.C. - The Justice Department’s Energy and Natural Resources Division filed a statement of interest last Friday in a lawsuit brought by Oklahoma’s attorney general, expressing support for construction of a primary aluminum smelter in Inola, Oklahoma.
ENRD’s filing concerns a case where Oklahoma Attorney General Gentner Drummond sued Century Aluminum Company and Aluminum Oklahoma, alleging environmental violations under state nuisance laws.
Drummond filed a motion July 23 to remand this case from the US. District Court for the Northern District of Oklahoma, in Tulsa, to Rogers County District Court, in Claremore. He also has a pending motion for preliminary injunction seeking to block construction of the proposed smelter while the lawsuit is decided.
Drummond’s allegations focus on the federal Clean Air Act and Clean Water Act, which require environmental permits for the construction and operation of the primary aluminum smelter.
Instead of allowing review of these environmental permits in the first instances, Drummond seeks to enjoin construction through a premature lawsuit, ENRD notes.
“Whether the Oklahoma Department of Environmental Quality issues a Prevention of Significant Deterioration (PSD) permit influences this court’s analysis of whether the Attorney General’s nuisance claim is viable,” the Justice Department wrote in a motion filed Aug 27. “The Court should dismiss the petition ... based on the environmental permitting proceedings for the facility at issue in this case.”
“To be granted, a PSD permit must address four questions established by federal regulations,” attorneys with Crowe & Dunlevy, representing the Justice Department, informed the federal court: “(1) whether the facility will use the best available pollution controls; (2) whether it will protect national and state air quality standards; (3) whether it will harm pristine areas such as national parks; and (4) what broader impacts it will have on soil, plants, and visibility.”
Rather than allowing the regulatory process prescribed by federal law—and implemented by DEQ under federally-delegated authority— to proceed, “the AG seeks to interpose its preferences through collateral attack premised principally on public nuisance law,” the attorneys wrote.
“Unlike the permitting process that applies federal Clean Air Act standards, public nuisance law provides no discernible criteria for consistent emissions management. When combined with the injunctive relief the AG seeks as its sole remedy, this lawsuit would substitute judicial preferences for the comprehensive federal regulatory framework,” the attorneys argued..
Drummond’s lawsuit threatens vital materials critical to our nation’s defense, the Trump administration contends.
“This project advances national and economic security by reducing the country’s reliance on foreign sources of materials critical to the national defense,” said ENRD Principal Deputy Assistant Attorney General Adam Gustafson. “The Department of Justice is committed to supporting military readiness and opposing litigation that subverts environmental regulatory processes established by Congress.”
President Donald Trump’s recently issued executive order, “Further Strengthening Actions Taken to Adjust Imports of Aluminum into the United States,” recognizes that the quantities of aluminum imported into the United States threaten to impair our national security. Domestic production and supply of primary aluminum is imperative in producing an irreplaceable strategic material that is indispensable to our modern defense manufacturing, the administration asserts.
The Department of War requires primary aluminum for aerospace and air dominance, ground combat vehicles, naval systems, missiles, and space programs. However, the United States now represents less than 1% of the global primary aluminum production. As a result, China, the leading global producer of primary aluminum, has sought to leverage its position in primary aluminum production to gain advantage over the United States.
As outlined in ENRD’s statement of interest, the primary aluminum smelter in Inola is the nearest-term solution in combating this national security risk.
When completed, the smelter would be the first constructed in the United States in more than 40 years and would rank as the largest primary aluminum production facility in the United States.
It would more than double the nation’s output, “ensuring the United States has access to important materials used for the national defense to promote national security.” The U.S. Supreme Court “has held that the public has an interest in national security and military readiness,” the Justice Department wrote in response to Drummond’s lawsuit.
The Department of Energy recently awarded $500 million in support of the Inola project, recognizing its importance in increasing domestic production of primary aluminum while avoiding an estimated 75% of emissions from a traditional smelter. A delay in construction would place the United States at risk of foreign reliance “and severely limits our ability to produce the armor, aircraft, and munitions required for national defense,” the Justice Department wrote.
The Clean Air Act and Clean Water Act provide the appropriate mechanism to address environmental concerns raised by Oklahoma Attorney General Drummond, the Justice Department insists.
In its filing, ENRD asked the US. District Court for the Northern District of Oklahoma to dismiss the lawsuit, which “would otherwise stop construction of the primary aluminum smelter and threaten America’s security by denying access to this critical material necessary for military readiness.”