Mountain Laurel Complex in W.V. image from Google Earth
A standing-room only crowd packed a federal appeals courtroom in D.C. Thursday morning to hear arguments over whether the Environmental Protection Agency may rescind a dumping permit after it has been granted by the Army Corps of Engineers.
The high-profile case is being closely monitored by industry and the environmental community. The Chamber of Commerce, 34 industry trade groups and seven environmental organizations have filed friend-of-the-court briefs in the case. Mingo Logan Coal Co., a subsidiary of Arch Coal, the nation’s second largest producer of the fossil fuel, is represented by four lawyers from Hunton & Williams, a powerful law and lobby firm.
At issue is the proposed Spruce No. 1 mine in Logan County, West Va., which would be one of the largest mountaintop mining sites in the country. The EPA says in its brief to the U.S. Circuit Court for the District of Columbia that the project would disturb 3.5 square miles of earth and spew nearly 3 billion cubic feet of dirt and rubble into seven miles of mountain streams.
Judge Thomas B. Griffith
Both sides faced tough questioning from all three judges. Matthew Littleton, a Justice Department lawyer representing the EPA, was only a few words into his presentation when Judge Thomas B. Griffith cut him off. Griffith, joined by judges Karen LeCraft Henderson and Brett M. Cavanaugh peppered Littleton with questions and argued the case against the EPA.
“The Army Corps of Engineers gets to issue permits …” Griffith said. “That’s the central feature of the compromise Congress reached,” when it passed the Clean Water Act.
Griffith asked whether allowing the EPA to rescind the permit was granting the agency “authority that the statute doesn’t seem to allow.”
When his turn came, Robert Rolfe, an attorney for Mingo Logan, was also pummeled with questions from the judges, who argued the case against the coal company.
Mingo Logan says that the permitting process for the Spruce No. 1 mine took 10 years and involved dozens of state and federal regulators. The EPA could have objected to the project at any time before the permit was granted, Mingo Logan argues, but Congress did not give the EPA the authority to veto a permit once issued by the Corps.
Robert Rolfe
But Griffith speculated that Congress intended to give the EPA the power to rescind permits. “What people may have thought,” Griffith said, “is that the EPA might have been more sensitive to environmental concerns and so they gave the EPA a backstop.”
Cavanaugh also questioned Mingo Logan’s interpretation of the law. “I don’t see how anyone can have a permit,” Cavanaugh said, “and assume it’s going to stay in place,” no matter what.
Mountaintop mining is the controversial process in which coal companies dynamite off the tops of mountains to get to the coal underneath. At the start of the process, skyline trees – diverse forests of maples, poplars, oaks and other species – are leveled. Then the companies blast away up to 1,100 vertical feet of mountainside, according to the U.S. Office of Surface Mining. The debris is dumped in nearby hollows and streams.
Studies have linked higher rates of cancer and birth defects to mountaintop mining. Blasting has destroyed the foundations of homes throughout Appalachia and created dust that covers homes, inside and out. Many once clear-running streams have been polluted, and residents say coal companies have blocked off hollows and streams that used to be used for recreation.
Brett M. Cavanaugh
“The pond behind [my] friend’s house – like a stream – is black as coffee at times,” Brandon Nida, a community activist with Blair Mountain Heritage Alliance, says. “The coal companies kind of own this part of the country. There’s an ever-pervasive presence of the coal industry. They have security guards running up and down the roads.”
The Army Corps of Engineers, with input from the EPA, granted a permit for the Spruce No. 1 mine to Mingo Logan Coal in 2007 during the Bush administration. In Jan. 2011, the EPA announced it was going ahead with plans to veto the permit. The agency says its decision to take the rare step of rescinding the permit after it was issued was based on “new scientific evidence” that the mine would pollute waterways downstream from the project, destroying water quality and ecosystems and killing fish and other wildlife.
The veto would ban the dumping of waste material from the mine into Pigeon Roost Branch and Oldhouse Branch and their tributaries, effectively shutting down 88 percent of the project, according to the brief filed with the circuit court by Mingo Logan. The EPA has allowed the company to continue dumping into the Seng Camp Creek but the rest of the project has been halted, pending the outcome of the case.
“Pigeon Roost Branch and Oldhouse Branch, and their tributaries are ‘some of the last, rare and important high quality streams in the watershed’ so their destruction would constitute an adverse impact ‘that the aquatic ecosystem cannot afford,’” the EPA says in its brief, quoting from an earlier agency document.
Mingo Logan argues the EPA could have taken steps to kill the project during the 10 years it took to win approval. “EPA was involved every step of the way,” Mingo Logan argues in its brief. To attempt to veto the permit four years after it was granted is “patently unreasonable.”
The U.S. District Court for the District of Columbia sided with Mingo Logan last March. In a sharply worded opinion, U.S. District Court Judge Amy Berman Jackson scolded the EPA for “magical thinking” in trying to rescind a permit four years after it was granted.
Industry representatives argue in amicus briefs to the appellate court that allowing the EPA to remove the Mingo Logan permit will create uncertainty, hinder investments and stifle economic growth.
The EPA says in its brief that such concerns are unfounded. The agency says it has rescinded only two other permits after they were granted in the 40 years since the Clean Water Act created the permitting process. It cites the low number as proof that it acts with restraint.
In 1981, the EPA rescinded a permit for North Miami to fill wetlands for a park after the agency learned the city was using garbage, according to the EPA’s brief. In 1992, the agency rescinded a permit to James City, Va., after an appeals court overturned a district court ruling ordering the Corps to grant the permit, the brief says. The EPA claims its authority under section 404(c) of the Clean Water Act.
“Amici contend that this [c]ourt’s approval of EPA’s 33-year-old interpretation of [section] 404(c) will suddenly and significantly harm the entire United States economy. But EPA has exercised its post-permit authority sparingly over the past four decades,” the agency writes. “Like Mingo Logan, the Chamber [of Commerce] fails to recognize that absolute certainty for polluters was not the motivating goal behind the Clean Water Act.”
The Justice Department and the EPA declined comment on Thursday’s hearing citing the pending litigation. Mingo Logan said in a prepared statement, “Today we continued to defend the permit for the Spruce No. 1 mine that was granted by the U.S. Army Corps of Engineers six years ago.