EPA’s Victory Moves Clean Water Act Fight Back to District Court

Merits of Case Must Now Be Decided

A federal appeals court ruling Tuesday that the Environmental Protection Agency has the authority to rescind a dumping permit three years after it was granted by the Army Corps of Engineers drew cheers from environmentalists.

The decision reverses a lower court’s ruling that would have allowed Mingo Logan Coal Co. to proceed with plans for one of the nation’s largest mountaintop mines in southern West Virginia. Mingo Logan is a subsidiary of Arch Coal, the second largest producer of fossil fuel in the country.

But the case is far from over. The decision, written by Judge Karen LeCraft Henderson, returns the case to District Court Judge Amy Berman Jackson. When Jackson sided with Arch Coal last year, she ruled on the company’s argument that the EPA lacked authority to rescind the permit but she must now rule on its contention that the agency was “arbitrary and capricious” in its arguments.

That might seem an easier hurdle for the EPA to clear but environmental attorneys say not necessarily. In the case decided this week, the circuit court ruled on whether the EPA has the authority to rescind a permit once granted under any circumstances. Now the district court will look at the specifics of this case, an attorney representing one of the environmental groups who spoke anonymously so he could talk more freely, said.

“Now, it’s going to be decided on the facts of this particular case,” the attorney said. “Whether the impact of this massive surface mine that would fill six miles of pristine headwater streams would indeed have “an unacceptable and adverse” effect on wildlife, as the Clean Water Act requires.

The case centers on Spruce No. 1 mine in Logan County West Va. The EPA said in its brief that the project would disturb 3.5 square miles of earth and spew nearly 3 billion cubic feet of dirt and rubble into six miles of mountain streams. Environmentalists say they are some of the last remaining pristine streams in southern West Virginia, which has been ravaged by coal mining, particularly mountaintop mining.

The legal question before the court was whether EPA has the authority to veto a permit after it’s granted by the Army Corps of Engineers. The EPA argued that the Clean Water Act grants it such authority and that it has used it twice in the past, but Mingo Logan said the law did not allow EPA to veto a permit once granted. A ruling in favor of the EPA, Mingo Logan said, would bestow a broad new power on the agency, creating uncertainty for industry and stifling economic growth.

But the U.S. Circuit Court for the District of Columbia disagreed, citing section 404 (c) of the Clean Water Act and its use of “whenever” to describe when the agency may withdraw a permit.

“Using the expansive conjunction, “whenever,” the Congress made plain its intent to grant the Administrator authority to prohibit/deny/restrict/withdraw a specification at any  time.”

Jim Sconyers, chair of the West Virginia Chapter of the Sierra Club, said although the fight isn’t over yet, the group is “ecstatic” at the news.

“That’s great,” Sconyers said. “The Corps can’t just keep letting companies off the hook when they think it’s OK to bury our pristine mountain streams in billions of tons of mining spoil.”

Arch Coal issued a brief statement. “We’re disappointed in the decision,” Kim Link, a company spokeswoman said in an email. “The case will now go back to the district court for a decision on the merits.”

The National Mining Association said the decision will have a chilling effect on industry.

“This ruling is like a cloud of uncertainty that now hangs over not only the coal industry but all the industries – homebuilding, construction, road-building – that require a permit from the EPA,” Luke Popovich said. “If EPA can withdraw a permit, then it will discourage investment.”

The high-profile case has been closely monitored by industry and environmentalists. The Chamber of Commerce, 34 industry trade groups and seven environmental organizations have filed friend-of-the-court briefs in the case.

Mingo Logan says the permitting process for the Spruce No. 1 mine took 10 years and the EPA could have vetoed the mine at any step along the way. The Army Corps of Engineers, with input from the EPA, granted the permit in 2007 during the Bush administration. The agency says its decision to take the rare step of rescinding a 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 wildlife. The EPA, under the Obama administration, announced its decision to go ahead with plans to veto the permit in January 2011.

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.