Five green groups assert that the U.S. Environmental Protection Agency had legal authority to veto water-pollution permits for one of West Virginia's largest mountaintop removal mines, and that the federal judge who ruled otherwise improperly considered the potential economic implications. In a brief filed recently with the U.S. District Court of Appeals for the District of Columbia, the environmental groups say Judge Amy Berman Jackson's March ruling on the 2,300-acre Spruce No. 1 mine should be overturned "to prevent unacceptable harm to vital West Virginia waterways.''
The West Virginia Highlands Conservancy, Coal River Mountain Watch, Natural Resources Defense Council, Ohio Valley Environmental Coalition and the Sierra Club say the Clean Water Act plainly gives the EPA the power to withdraw -- and effectively reverse -- permits issued by the Army Corps of Engineers. The groups also argue that Jackson was wrong to impose economic policy decisions on what is solely an environmental issue. Though coal operators may want "finality'' in the permitting process, the groups say, there is no such thing. Permits are always issued under the condition that operators pollute only within acceptable limits. "A CWA permit is never truly final in the way the district court suggested,'' they argue, "because it always remains subject to potential agency action necessary to protect the environment.'' Under Jackson's interpretation, they say, "EPA would be powerless to act'' regardless of how much harm is done to waterways, aquatic creatures and nearby communities.
"The permit is not an end in itself,'' they argue, "and it has worth only if it protects waters from harm, which EPA has determined the Spruce permit would not do.'' Jackson ruled that the EPA exceeded its authority in January 2011 when it revoked a permit that the corps had issued four years earlier to St. Louis-based Arch Coal and its Mingo Logan Coal Co. subsidiary. The EPA concluded that destructive and unsustainable mining practices would cause irreparable environmental damage and threaten the health of communities nearby.
It was only the 13th time since 1972 that the EPA had used the veto authority it was given by Congress and the first time it had acted on a previously permitted mine. EPA said it reserves the power for rare and unacceptable cases, but Jackson declared the action "incorrect and unreasonable.''
Coal-state politicians and industry officials pounced on Jackson's ruling, proclaiming it a victory for those states and confirmation of an overreach of the federal government's authority. It was one of several setbacks this year for the EPA in Washington. Last month, U.S. District Judge Reggie Walton ruled that the agency overstepped its authority by setting up water-quality criteria for Appalachian strip mines. That ruling said the authority belongs to state regulators under existing clean-water and surface-mining laws.
The EPA appealed the Spruce No. 1 ruling in July, and the West Virginia Department of Environmental Protection filed paperwork indicating that it, too, will file a brief in the case. Arch, meanwhile, has until Sept. 4 to file a response. Mountaintop removal is a highly efficient but particularly destructive form of strip mining that blasts apart mountain ridge tops to expose multiple coal seams. The resulting rock and debris is dumped in streams, creating so-called valley fills. Spruce No. 1 would have buried nearly 7 miles of streams. In its appeal, the EPA said that while one section of the Clean Water Act lets the corps issue permits for the dumping of fill material, another gives EPA the unambiguous right to "prohibit, deny, restrict or withdraw specification of fill disposal sites.'' That power was created in a legislative compromise the EPA says was intended to let the agency do its job and prevent unacceptable environmental damage. The EPA says it can invoke that authority before, during or after the corps' permitting process. Should the court determine that the language of the Clean Water Act is vague, the agency argues, "it should uphold EPA's interpretation of the statute as reasonable and permissible.'' Alternatively, it asks the appeals court to send the case back to Jackson for a hearing on whether the EPA's actions were arbitrary and capricious. No oral arguments have yet been scheduled.