The ruling was praised by groups that blame mountaintop removal mining for pollution. Court: EPA can withdraw permits

An appeals court handed the Environmental Protection Agency a big win Tuesday, overturning a lower court decision in a ruling that said the agency has the power to retroactively veto coal mining pollution permits.

The decision by the U.S. Court of Appeals for the D.C. Circuit in Mingo Logan Coal Company v. EPA reverses a scathing district court ruling issued last year that said EPA overstepped its legal bounds when it withdrew parts of an already-issued mountaintop mining permit in Logan County in West Virginia.


The appeals court panel read the Clean Water Act differently, though, and said in its ruling Tuesday that the CWA “does indeed clearly and unambiguously give EPA the power to act post-permit.”

The new ruling was praised by environmental groups that blame mountaintop removal mining for pollution and health problems across Appalachia.

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

Public Justice attorney Jim Hecker said that “this decision is effectively the death knell to the largest and most destructive mountaintop removal coal mine ever proposed.”

At issue is a Section 404 permit issued in 2007 by the U.S. Army Corps of Engineers that allowed the Spruce No. 1 mine in West Virginia to discharge material into three nearby streams and tributaries.

EPA has veto authority over those Clean Water Act Section 404 permits issued by the Corps, and it raised concerns about the Spruce mine permit in 2006, but ultimately allowed it go forward without objection.

That changed under the Obama administration, and in September 2009, the EPA told the Corps that it planned to revoke or modify the permit, based on new information, particularly related to downstream water pollution.

The agency officially withdrew parts of the permit allowing discharges into two of the three streams and their tributaries in January 2011 because of significant expected environmental and health effects of the pollution.

It was the first time EPA has used the veto authority retroactively. The mining industry and its supporters in Congress howled at the move, saying the law grants the agency no such right.

But in today’s ruling, the appeals court’s judges, Karen LeCraft Henderson, Thomas Griffith and Brett Kavanaugh, said Congress gave the EPA a “broad environmental ‘backstop’ authority” over the Corps.

There’s no time limit on that authority either, the decision said. Instead, the statute “expressly empowers [the EPA administrator] to prohibit, restrict or withdraw the specification ‘whenever’ he makes a determination that the statutory ‘unacceptable adverse effect’ will result,” the appeals court decision said.

The court said the statute gives the EPA the power to prohibit or withdraw any part of a Corps’ permit allowing discharges, or it can prohibit or withdraw an area from being available for discharges.

In fact, the court said EPA’s power to withdraw Corps-issued permits can only be exercised post-permit, and judges cited the definition of “withdraw” as meaning taking something back that has already been given.

“During the permitting process, the disposal sites are proposed, reviewed — perhaps even ‘specified,’ as Mingo Logan contends — but the final specifications are included in the permit itself,” the ruling said. So the EPA can only “withdraw” the final permit provisions after it is issued, the court said.

Mingo Logan had argued that legislative records make it clear that Congress did not mean to allow the EPA to withdraw a permit after it had already been granted, but the court said it did not find the company’s arguments persuasive.

Tuesday’s decision was sharply different than the one that came from a lower court last March. Then, a federal district court judge slammed the Obama administration’s effort to revoke the mountaintop mining permit, saying “EPA resorts to magical thinking” to justify its actions.

“It posits a scenario involving the automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and consideration,” U.S. District Judge Amy Berman Jackson wrote at the time in her opinion.

Jackson had also agreed with arguments that allowing retroactive vetoes undermines stability and certainty that industry needs.

The appeals court did not overtly address industry concerns about EPA’s retroactive authority and the effect it could have on investments.

National Mining Association President and CEO Hal Quinn criticized the ruling as giving EPA “unbounded authority” to revoke permits issued by another agency, a move that would complicate the permitting process.

“As a result, a cloud of uncertainty now hangs over any project and companies will no longer have the assurance required to encourage investments, grow our economy and create U.S. jobs,” Quinn said.

The company downplayed the ruling. “We’re disappointed in the decision, which was related to the procedural aspects of the proceeding. The case will now go back to the district court for a decision on the merits,” said Kim Link, spokeswoman for Arch Coal, which owns the mine.

Separately, the appeals court said the lower court didn’t address the merits of an Administrative Procedure Act challenge brought by Mingo Logan over the final decision “and resolution of the issue is not clear in the present record.” Consequently, that issue has been remanded to the district court to be addressed.

“EPA is pleased with the unanimous decision of the District of Columbia Circuit Court in support of the government’s position in Mingo Logan Coal Company v. EPA,” said EPA spokeswoman Alisha Johnson. “The agency is working with the Department of Justice to review the details of this decision.”

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