Federal Court Strikes Down EPA Decision To Retroactively Veto Dredge-and-Fill Permit

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By Alan Kovski
A federal court ruled March 23 that the Environmental Protection Agency has no authority under the Clean Water Act to veto a dredge-and-fill permit after the U.S. Army Corps of Engineers has issued the permit (Mingo Logan Coal Co. v. EPA, D.D.C., No. 1:10-cv-541, 3/23/12).

The U.S. District Court for the District of Columbia granted summary judgment blocking EPA's action, as requested by Mingo Logan Coal Co., a unit of Arch Coal Inc.

EPA had claimed that Section 404(c) of the Clean Water Act gave the agency authority to invalidate a Section 404 permit whenever EPA concludes that an activity will have unacceptable adverse impacts on water, fish, wildlife, shellfish beds and fishery areas, or recreational areas.

The case, involving the disposal of rock waste from a mountaintop coal mine in West Virginia, was the first instance in which EPA attempted a retroactive veto of a Section 404 permit.

Sorting Out Unclear Statute.
The Corps of Engineers in 2007 issued a dredge-and-fill permit under Section 404(a) to Mingo Logan for disposal of waste rock from the Spruce No. 1 mine. EPA announced in 2010 that it would use its Clean Water Act veto authority to restrict the disposal sites that had been approved in the Spruce No. 1 permit.

Mingo Logan argued that the use of the word “whenever” in the law, in reference to EPA's veto authority, was meant to apply only while the permit was being considered. Had Congress meant to give EPA authority to veto a permit after it was issued, Congress would have explicitly done so, the company argued before the court in November (231 DEN A-8, 12/1/11).

“EPA's position is that section 404(c) grants it plenary authority to unilaterally modify or revoke a permit that has been duly issued by the Corps—the only permitting agency identified in the statute—and to do so at any time,” Judge Amy Berman Jackson wrote in her memorandum opinion. “This is a stunning power for an agency to arrogate to itself when there is absolutely no mention of it in the statute. It is not conferred by section 404(c), and it contrary to the language, structure, and legislative history of section 404 as a whole.”

The judge described the Clean Water Act provision as “awkwardly written and extremely unclear,” and then went on to say that EPA could not take advantage of a “gap or ambiguity in the statute” to confer a power on itself.

“Neither the statute nor the Memorandum of Agreement between EPA and the Corps makes any provision for a post-permit veto, and the agency was completely unable to articulate what the practical consequence of its action would be,” the judge wrote, referring not only to the Clean Water Act but an Obama administration memorandum on cooperation between EPA and the Corps of Engineers.

‘Abusing Their Regulatory Authority.'
Members of Congress from West Virginia issued statements hailing the ruling.

Sen. Joe Manchin (D-W.Va.) said justice was served, and he added that he would continue to fight in Congress to rein in EPA.

Rep. Shelley Moore Capito (R-W.Va.) said, “This decision underscores what I've been saying for the past three years: This administration has been abusing their regulatory authority in order to advance an anti-coal agenda.”

Rep. David McKinley (R-W.Va.) similarly said EPA was driven by ideology in its action on West Virginia coal issues.

To environmental advocacy groups, it was a frustrating setback. Several groups, including the Sierra Club and regional Appalachian groups, issued a statement calling on EPA to appeal the ruling.

“It is a sad day not only for the people who live near mountains and streams threatened by mountaintop removal coal mining, but for all Americans who understand the need to protect our waterways, and the health of communities that depend on them,” the group said.