When Congress passed the Clean Water Act in 1972, lawmakers made their goals pretty clear.Authors of the law wanted to “restore and maintain the chemical, physical and biological integrity of the nation’s waters.”Later this week, lawyers for the coal industry will argue that this law allows operators to cover hundreds of miles of Appalachian streams with waste rock and dirt.In May, Chief U.S. District Judge Charles H. Haden II ruled that mountaintop removal valley fills weren’t what Congress had in mind.
Coal industry lawyers and the Bush administration appealed to the 4th U.S. Circuit Court of Appeals.On Wednesday, a three-judge 4th Circuit panel in Richmond, Va., will hear oral arguments in the case. A ruling is expected early next year.The case is a major one for West Virginia’s coal industry and environment.If Haden’s ruling stands, coal operators will be able to get permits for valley fills only if those fills are proposed as part of post-mining development plans.Coal operators and the Bush administration say the ruling cripples the industry.But in the appeal, lawyers will argue not just about whether Haden was right or wrong. They will debate if the judge really had the authority to decide what the Clean Water Act means.The case isn’t just about the environment. It’s about who makes decisions about environmental protection.Industry and Bush administration lawyers say that the judge should have deferred to the Army Corps of Engineers and the Environmental Protection Agency. Those agencies had tried to rewrite Clean Water Act rules to specifically allow valley fills.“This was naked policy making,” industry lawyers argued in their appeal brief. “The district court’s ... insistence on substituting its own reading of the statute, run[s] afoul of the proper role of courts in our system of government.”Filling in the blanksIn the United States, Congress writes environmental laws.
Typically, the laws set out broad policy goals — clean up the air, clean up the water, properly dispose of waste. Lawmakers don’t always write down all of the specifics for how these goals should be met.Agencies like EPA and the Corps implement those laws, and must try to meet congressional goals. Those agencies write rules and regulations to govern how they do that. Sometimes, they have to fill in the blanks where Congress wasn’t very specific.Lawsuits almost always follow. Environmental groups say the rules are weaker than Congress intended. Industry says they are stricter.The courts have to decide who is right.When they review the valley fill case, 4th Circuit judges will apply nearly 20-year-old legal precedents in this area.In 1986, the U.S. Supreme Court outlined a two-part test in a case called Chevron v. NRDC.
First, did Congress speak directly to the issue? If so, regulatory agencies and the courts must defer to lawmakers.Second, if Congress didn’t make its intent clear, is the agency’s interpretation reasonable? If it is, the court must defer to the agency.In the mountaintop removal case, Haden ruled that Congress made its intent clear. A law intended to clean up and protect streams couldn’t possibly include an exemption broad enough to allow hundreds of miles of streams to be buried by valley fills, the judge said.“This obviously absurd exception would turn the ‘Clean Water’ Act on its head and use it to authorize polluting and destroying the nation’s waters for no reason but cheap waste disposal,” the judge wrote.Waste or fillHaden ruled in a case filed by the citizen group Kentuckians for the Commonwealth, or KFTC. The group sought to block a mining proposal that would have covered more than 6 miles of streams.In their lawsuit, KFTC lawyers argued that the Corps’ own regulations did not allow it to issue permits for valley fills.Congress gave the Corps authority to issue permits “for the discharge of dredged or fill material” into rivers and streams, under Section 404 of the Clean Water Act.Congress didn’t define “fill material.”In its definition of fill material, the Corps excluded any material that was deposited into streams mainly as a way to dispose of waste. In mountaintop removal, entire hilltops are removed to uncover valuable, low-sulfur coal reserves. Leftover rock and dirt is dumped into nearby valleys, burying streams.In another case, Haden in 1999 ruled that the Corps’ rules didn’t allow valley fills. After that decision, the Clinton administration proposed to rewrite those rules to specifically allow valley fills. The Clinton White House never finalized the change, and Haden’s decision was overturned on procedural grounds.Nine months after the Kentucky citizens group filed its lawsuit, the Corps and EPA announced a rule change that specifically allowed valley fills.Haden said the rule change didn’t matter. He concluded that the Clean Water Act itself outlawed valley fills.Congress did no such thing, lawyers for the Corps and coal industry argued in their appeal of Haden’s ruling.“Although it could have easily done so, Congress did not define ‘fill material,’ leaving that to the agencies charged with administering the Section 404 program,” lawyers from the U.S. Justice Department told the appeals court in a brief.Because Congress didn’t define fill material, industry and government lawyers say, Haden should have deferred to the Corps and EPA.Allowing valley fills is a reasonable reading of Clean Water Act, coal industry lawyers said. “Something called a ‘valley fill’ ought to qualify as ‘fill material,’” they said.In their legal brief, citizens group lawyers agreed with Haden’s conclusion. But, they got there a different way.Under the Clean Water Act, the citizen lawyers argued, all pollution discharges must comply with state water quality standards.One of those standards says that streams may not be used to transport or dilute waste.“Valley fills that bury waters of the United States with millions of tons of waste cannot achieve this water quality standard,” the KFTC lawyers wrote. The other standard states that existing water quality must be maintained and protected.“It is obvious that filling of hundreds of miles of streams causes significant degradation,” the citizen group lawyers wrote. In their brief, KFTC lawyers argue that a Corps-EPA reading of the law that allows valley fills is not reasonable.“The corps offers no significant analysis — much less a reasoned analysis — of why it is lawful or desirable to shunt aside the Act’s fundamental requirements and objectives in this manner, and to authorize the massive destruction of U.S. waters and the benefits they provide for people and wildlife,” they wrote.“Thus, even assuming ... that the Corps has the discretion to balance fundamental Clean Water Act tenets against the economies of cheaper coal, the agency has utterly failed to perform any such balancing here....”To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.