MINING: Big decision looms for EPA on whether to appeal mountaintop permit case

News
March 26, 2012
Manuel Quinones, E&E reporter
Greenwire: Monday, March 26, 2012
 
Developers of a sprawling mountaintop-removal coal mining project revived by a federal judge Friday are now waiting for U.S. EPA to decide whether it will appeal the first-ever court rejection of a Clean Water Act veto.
 
U.S. District Court Judge Amy Berman Jackson for the District of Columbia tossed out EPA's 2011 veto of the permit for the West Virginia mining project issued by the Army Corps of Engineers in 2007. EPA, Jackson wrote, overstepped its authority by nixing a permit that had been in the coal company's hands for four years (E&ENews PM, March 23).
 
Environmentalists want EPA to appeal to protect veto power given it by the 1972 Clean Water Act.
 
"We expect EPA will appeal, and I think they will win," Joan Mulhern, Earthjustice senior legislative counsel, said in an interview. "I can't imagine that they would not have something to say about their authority being challenged."
 
But EPA held its cards close in a statement issued Friday.
 
"EPA and the Department of Justice are reviewing [the] decision by the D.C. District Court," the agency said, adding that the ruling "does not affect the EPA's commitment to protect the health of Appalachian communities who depend on clean water."
 
Still, John Iani, former administrator of the EPA Region 10 office in Seattle under President George W. Bush, said recent court decisions appear to be removing tools from EPA's enforcement kit.
 
"It seems as though the courts are pulling back on EPA's power that is not clearly delineated in statute," said Iani, now a Seattle-based attorney with the firm Perkins Coie. "I think that it's a wake-up call to the agency."
 
EPA's veto of the permit issued by the Army Corps to Arch Coal's Spruce No. 1 project in Logan County was the 13th time the agency had exercised its veto power under Section 404 of the Clean Water Act. But it was first time the agency did so retroactively.
 
"To explain how this would be accomplished in the absence of any statutory provision or even any regulation that details the effect that EPA's belated action would have on an existing permit, EPA resorts to magical thinking," Berman Jackson wrote.
 
She added, "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. Poof!"
 
After reading the strongly worked rebuke of the agency, Iani said EPA would have to be more careful when using its veto authority and becoming involved in Army Corps permitting decisions. "It will have to be much earlier in the permitting process," Iani said.
 
Iani predicted EPA would take some time before deciding on its next steps.
 
"It becomes more centered law if they lose on appeal," he noted.
 
Mulhern predicted an appeal victory. "The judge in the case misread the statute," she said, "and never in the 40 years since the Clean Water Act was passed has a court ever overruled its authority to veto a permit."
 
Permit outlook
 
Environmentalists, meanwhile, say a separate case against the permit in U.S. District Court in West Virginia may buy more time to stop the project.
 
They say the company has to give notice before moving forward with mining.
 
"As we view the facts on the ground, they cannot move forward with the permit," Earthjustice attorney Jennifer Chavez said in an interview. "The validity of the permit is very much in question."
 
Arch Coal spokeswoman Kim Link said the company was evaluating its next steps.
 
Coal-industry boosters are already claiming victory. They say Berman Jackson's decision is good not only for the coal industry but also for other companies worried about having permits scrapped retroactively.
 
"The Federal District Court sent a strong message that the EPA is not above the law," Karen Harbert, CEO of the U.S. Chamber of Commerce's Institute for 21st Century Energy, said in a statement. "Early on the EPA tried to force the Chamber out of the case and today our stand for justice prevailed."
 
In a statement, Sen. Joe Manchin (D-W.Va.) said, "I applaud our courts for stating clearly and unequivocally that a bureaucratic agency like the EPA cannot run the lives of hardworking Americans."
 
Manchin is one of several lawmakers who have introduced legislation to prevent future retroactive vetoes.
 
Iani said Congress may indeed have to step in to clarify its intent. The judge, he said, "really had a problem deciding what Congress intended."