Federal appeals court grants EPA far-reaching authority to revoke pollution permits

Michael Bastasch | Contributor

A U.S. federal appeals court ruled on Tuesday that the Environmental Protection Agency has the legal authority to retroactively revoke a water pollution permit for one of West Virginia’s largest mountaintop removal coal mines.

The appellate court ordered district court judge Amy Berman Jackson to address the coal industry’s argument that the EPA’s actions were an “arbitrary and capricious” violation of the Administrative Procedure Act, which she previously did not rule on.

The decision could have far-reaching impacts on the coal industry, as well as on other projects that rely on water-pollution permits.

“Today’s federal appeals court ruling further highlights what Congress is up against in President Obama’s war on coal,” said West Virginia Rep. Shelley Moore Capito. “The Environmental Protection Agency has continued to overstep its bounds in its efforts to implement the president’s anti-energy policies.”

West Virginia Democrat Rep. Nick Rahall, D-W.Va., cautioned that the ruling could “open the floodgates to disrupting coal mining in West Virginia and elsewhere” and “upend the traditional balance that has existed between the states and the federal government in the permitting process.”

Rahall vowed to reintroduce a bill to the block the EPA “from using the guise of clean water” to hinder the coal industry.

Under the Clean Water Act, operations that dump “dredge or fill materials” into wetlands, rivers, lakes, or streams must obtain a Section 404 permit from the U.S. Army Corps of Engineers. The EPA can revoke this permit if there are “unacceptable adverse impacts on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas.”

The case revolved around a 2,300-acre Logan County, West Virginia mine that was issued a Clean Water Act Section 404 permit by the Army Corps of Engineers. However, four years later, the EPA determined that the mine would cause irreparable damage to the environment and threaten human health, and pulled the permit. Judge Jackson ruled that EPA had overreached in revoking the permit, which had been reviewed and issued by the Army Corps of Engineers.

However, appellate judge Karen LeCraft Henderson said Congress made its intent plain by using “unambiguous language” to give the EPA “a broad veto power extending beyond the permit issuance.”

She added that the law did not impose a time limit for EPA to act, instead permitting it to interfere whenever it discovers that an “unacceptable adverse effect” will result from a project.

“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,” Henderson wrote in the ruling.

Environmental groups have hailed the decision as a victory for environmental protection and for the health of surrounding communities.

“The U.S. Army Corps of Engineers has literally overseen the destruction of Central Appalachia and EPA oversight is needed to stop it,” said Joe Lovett, who represents the group Appalachian Mountain Advocates.

Communities “can finally breathe a sigh of relief knowing that EPA always has the final say to stop devastating permits for mountaintop removal mining,” said Earthjustice attorney Emma Cheuse.

However, the decision could impact billions of dollars in mining and industrial projects around the country.

“Anti-mining groups are wrong to treat today’s ruling as an exoneration of EPA’s unilateral action to stop a mine years after it was fully approved through the permitting process,” said Daniel McGroarty, president of American Resources Policy Network. “Legal wrangling on procedural issues doesn’t change the facts about the impact of EPA’s action. More than $200 billion in investments across the U.S. — not just in mining projects, but in construction and agriculture — rely on Section 404 permits.”

“Not only will this ruling cost West Virginians hundreds of jobs, but it begs the question: Who’s safe?  If the EPA can take back a permit from a coal mine in West Virginia, they can do the same to any business in America,” Capito added.

“Whatever the courts decide, it will ultimately fall to Congress to determine whether it meant for EPA to be a super-legislature and court of final resort in regard to such a significant portion of the U.S. economy,” McGroarty added.

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