EPA to Appeal Court Decision Invalidating Retroactive Veto of Dredge-and-Fill Permit

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Mingo Logan Coal Co. v. EPA, D.D.C., No. 1:10-cv-541, 5/11/12

Key Development: EPA will appeal a federal court decision overturning its veto of an approved Clean Water Act permit for a mountaintop coal mine.

Potential Impact: The case could settle the question of whether EPA may veto a permit after the permit is issued.

What's Next: The case will be argued before the U.S. Court of Appeals for the D.C. Circuit.

By Alan Kovski  

Environmental activists May 14 welcomed an Obama administration decision to continue the court fight for an Environmental Protection Agency attempt to retroactively veto a dredge-and-fill permit issued for a mountaintop coal mine (Mingo Logan Coal Co. v. EPA, D.D.C., No. 1:10-cv-541, notice of appeal 5/11/12).

EPA had claimed that Section 404(c) of the Clean Water Act gave the agency authority to modify a Section 404(a) permit for the Spruce No. 1 coal mine in West Virginia after the U.S. Army Corps of Engineers had granted the permit. The U.S. District Court for the District of Columbia ruled March 23 that EPA had no such authority (57 DER A-27, 3/26/12).

The case will be appealed to the U.S. Court of Appeals for the District of Columbia Circuit, the Justice Department said in a May 11 filing at the district court.

“We're glad to see the EPA's decision to stand up to the coal industry and continue defending the basic right of everyday Appalachian families to clean water,” said a joint statement from Earthjustice, the Sierra Club, and four Appalachian regional environmental advocacy groups.

More than 60,000 messages were sent to EPA after the district court decision to urge the agency to appeal the decision, according to the groups.

EPA Position Described as 'Cavalier.'

Luke Popovich, a spokesman for the National Mining Association, said May 14, “We believe the district court made compelling arguments about EPA's cavalier attitude toward both the law and the process, and we hope the appeals court concurs.”

Industry in this case has the support of Democrats and Republicans alike from West Virginia, in both the House and Senate. Environmental groups have allies among some members of Congress who share the groups' hope to ban mountaintop removal mining outright.

The administration also may be losing past allies. Cecil Roberts, president of the United Mine Workers of America, campaigned for Barack Obama in 2008 during the presidential contest, but in early April he openly expressed dismay at the administration's regulatory approach to the coal industry.

Case Hinged on Meaning of 'Whenever.'

Mingo Logan Coal Co., a unit of Arch Coal Inc., the nation's second-largest producer of coal, has operated the Spruce No. 1 mine since 2007. EPA announced in 2010 that it would reduce the number of sites where Mingo Logan could pile mine waste, although the sites were approved in the permit.

District Court Judge Amy Berman Jackson ruled that EPA had exceeded its authority. “Based upon a consideration of the provision in question, the language and structure of the entire statutory scheme, and the legislative history, the Court concludes that the statute does not give EPA the power to render a permit invalid once it has been issued by the Corps,” the judge wrote.

The Spruce No. 1 case hinged on the Clean Water Act's use of the word “whenever.” EPA said the law allowed the agency to modify a permit whenever the agency concludes that an activity will have unacceptable adverse impacts on water, fish, wildlife, shellfish beds and fishery areas, or recreational areas.

Mingo Logan successfully argued that the use of the word “whenever” in the law was meant to apply only in the context of a pending permit application. The company noted that the law provides the Corps of Engineers with the authority to revise permits after they have been issued.

By Alan Kovski  

The memorandum opinion of the U.S. District Court for the District of Columbia in the case of Mingo Logan Coal Co. v. EPA is available at http://op.bna.com/env.nsf/r?Open=smiy-8uat62.

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