Wednesday, May 29, 2013

Mingo Logan Coal Company v. U.S. EPA

Apr 23: In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-5150. The Mingo Logan Coal Company (Mingo Logan) applied to the United States Army Corps of Engineers (Corps) for a permit under section 404 of the Clean Water Act (CWA) to discharge dredged or fill material from a mountain-top coal mine in West Virginia into three streams and their tributaries. The Corps -- acting on behalf of the Secretary of the Army (Secretary) and without objection from the Administrator of U.S. EPA (Administrator, EPA), who has 'veto' authority over discharge site selection under CWA subsection 404(c) issued the permit to Mingo Logan, approving the requested disposal sites for the discharged material. Four years later, EPA invoked its subsection 404(c) authority to "withdraw" the specifications of two of the streams as disposal sites, thereby prohibiting Mingo Logan from discharging into them.
    Mingo Logan filed this action challenging EPA's withdrawal of the specified sites on the grounds that: (1) EPA lacks statutory authority to withdraw site specification after a permit has been issued; and (2) EPA's decision to do so was arbitrary and capricious in violation of the Administrative Procedure Act (APA). The district court granted summary judgment to Mingo Logan on the first ground without reaching the second. The Appeals Court reversed the district court, concluding that EPA has "post-permit withdrawal authority," and remanded for further the case for proceedings.
    The Appeals Court importantly looks at the statute and Congressional intent and indicates, "Section 404 imposes no temporal limit on the Administrator's authority to withdraw the Corps's specification but instead expressly empowers him to prohibit, restrict or withdraw the specification 'whenever' he makes a determination that the statutory 'unacceptable adverse effect' will result. 33 U.S.C. § 1344(c) (emphasis added). 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."
    The Appeals Court concludes, "For the foregoing reasons, we reverse the district court insofar as it held that EPA lacks statutory authority under CWA section 404(c) to withdraw a disposal site specification post-permit. Because the district court did not address the merits of Mingo Logan's APA challenge to the Final Determination and resolution of the issue is not clear on the present record, we follow our usual practice and remand the issue to the district court to address in the first instance."
    At the time of the decision, environmental groups issued a release indicating, ". . .the U.S. Court of Appeals for the D.C. Circuit upheld the U.S. Environmental Protection Agency's legal authority to veto a mining permit that the U.S. Army Corps of Engineers had issued. The decision reverses the lower court's contrary ruling, and is a major blow to the coal industry's attempt to prevent EPA from protecting communities from the harm caused by mountaintop removal mining in Appalachia. The case will now go back to the D.C. District Court for briefing on other claims." Earthjustice, along with Appalachian Mountain Advocates, is representing West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, Coal River Mountain Watch, Sierra Club, and Natural Resources Defense Council as amici curiae (or "friends of the court") in support of EPA's veto in this case.
    Access the complete opinion (click here). Access a release from environmental groups on the decision (click here).  [#Energy/Coal, #Water, #CADC]  [Note: WIMS is reporting on this decision at this time because it was overlooked during our recent Spring break.] 
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