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Supreme Court Refuses to Hear EPA Coal Case

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Mingo Logan

WASHINGTON, D.C. – The Supreme Court refused on Monday to hear the Mingo Logan case, which revolves around whether the Environmental Protection Agency may veto a dumping permit already granted by the Army Corps of Engineers. The case now goes back to the U.S. District Court for the District of Columbia.

At issue is whether the EPA may stop Arch Coal from building a huge mountaintop mine in Logan County, W.Va.  St. Louis-based Arch Coal, one of the world’s largest producers of coal, according to its website, is the parent company of Mingo Logan Coal Co.

Arch Coal’s Spruce No. 1 mine is located in south western West Virginia, an area of Appalachia that has been ravaged by mountaintop mining. In this controversial method of extracting coal, miners dynamite hundreds of vertical feet of mountaintop to expose the coal beneath.

The EPA says debris from the Spruce No. 1 mine would destroy miles of unspoiled streams, endanger wildlife and harm neighboring communities. Environmentalists have petitioned the White House to ban mountaintop mining completely.

On Nov. 13, after losing at the circuit court level, Arch Coal filed a petition for a writ of certiorari, a request that the Supreme Court review the case. The U.S. Court of Appeals for the District of Columbia ruled in April that Congress intended for the EPA to have broad veto powers when it wrote under Section 404(c) of the Clean Water Act that the agency could rescind a permit “whenever” it deemed it necessary to protect the environment.

The Supreme Court does not comment when it denies review but environmentalists were elated with the decision.

Jennifer Chavez

“We’re thrilled. All along we’ve said that the plain text of the Clean Water Act settles this question,” Jennifer Chavez an attorney with Earthjustice, an environmental advocacy group, said in an interview. “It’s tremendously reassuring to know that the EPA will always have that backstop authority to stop some of the most destructive impacts to U.S. waters.”

“It’s great news,” Joe Lovett, Executive Director of Appalachian Mountain Advocates, said in an interview. “The Supreme Court really couldn’t have done anything else. It’s pretty clear the EPA has the right to veto a permit from the Army Corps of Engineers after it’s been issued.”

Arch Coal pointed out through a spokeswoman that the case is not over.

“The case will return to the district court for a ruling on the merits,” Kim Link said in a one-sentence email.

While the district court, which sided with Arch Coal, ruled on the broad question of whether EPA had the right to rescind a permit once granted, it did not rule on the merits of the case. When EPA won on appeal, the higher court ruled that the agency does have the authority to rescind a permit once granted, but again did not rule on the particular merits of this case.  That will be the issue before the district court when it again takes up the case.

Industry groups that filed friend-of-the-court briefs in the case were dismayed by the Supreme Court decision.

“It’s very disappointing to industry and, I’m sure, to Arch Coal,” Luke Popovich, a spokesman for the National Mining Association said.

“I think it’s a travesty,” M. Reed Hopper, an attorney for the Pacific Legal Foundation, a conservative, free-market group said. “It’s unbelievable that Congress would have intended to grant EPA the power to revoke any Clean Water Act discharge permit after it’s been granted. It’s an amazing abuse of power by the EPA.”

In its petition to the Supreme Court, Arch Coal argues that “whenever,” as it appears in the law, does not mean that EPA may veto a permit after it’s been granted.

“EPA’s assertion of a sweeping authority to nullify permits duly–issued by the Corps is not just breathtaking,” Arch Coal writes. “It is also — as the District Court correctly concluded – wrong.”

In its response, the EPA urges the justices not to take up the case, arguing that it does not merit a Supreme Court review because the circuit court decision doesn’t conflict with any other appeals court or Supreme Court rulings. The EPA argues that the law permits the agency to withdraw the approval of any disposal site deemed hazardous.

The law “means what it says,” the EPA writes in its brief. The agency may rescind a permit if it determines that dumping will adversely affect the environment, the agency says.

“The EPA may act ‘whenever’ it makes the necessary adverse-effect determination, whether that occurs before or after the Corps has issued a permit,” the agency writes, quoting from the law.

In January 2007, after 10 years of negotiation, the Corps, under the George W. Bush administration, gave Arch Coal a permit to dump debris from its Spruce No. 1 mountaintop blasting operation into nearby hollows and streams. The EPA announced plans to rescind the permit in March 2010 and vetoed it in January 2011, citing new research about the mine’s environmental impacts.

The agency says the project would spew 110 million cubic yards of dirt, rock and other debris into 6.6 miles of pristine streams. These waters are some of the few remaining such streams in south western West Virginia, according to environmentalists.  At about 3.5 square miles, the Spruce No. 1 mine is one of the largest mines ever in Appalachia, according to the EPA. The project has been in limbo since the EPA raised concerns about the mining operation in 2009.

Arch Coal says that energy, construction and other industries would be reluctant to invest in projects that fuel the economy if the EPA were given the authority to rescind a permit after it’s granted.

The Clean Water Act “does not remotely grant EPA a retroactive trump card that trivializes the Corps’ authority and destroys the regulated community’s ability to rely on the permit . . .,” Arch Coal argues. “Granting EPA this unprecedented power will chill private investment in critical sectors of the economy, where some $220 billion each year is contingent upon section 404 permits.”

A friend-of-the-court brief filed by the National Association of Manufacturers and other industry groups echoes those concerns.

“EPA’s stunning, newfound authority to nullify a Section 404 permit, even years after it issues, inarguably increases the regulatory risks faced by the public and private permit applicants,” the association argues. “This power grab by EPA will significantly reduce investments by creating uncertainty for current and future Section 404 permittees,” it says.

The EPA counters that industry has no cause for concern because in the four decades since the Clean Water Act passed, the EPA has vetoed only two other permits after they were issued by the Corps. In 1981, the EPA rescinded a permit for North Miami to fill wetlands after the agency learned the city was using garbage, the EPA says. In 1992, the agency rescinded a permit to James City, Va., after an appeals court overturned a district court ruling ordering the Corps to grant the permit, according to the agency.

And contrary to Arch Coal’s assertions that the EPA is creating new powers, the agency wrote about its authority to rescind permits years ago, it says. The EPA “specifies” where the dumping may take place before the Corps grants the permit, and the agency may withdraw the “specification” at any time, the EPA argues.

“And while the EPA has very rarely exercised its power to withdraw a specification after a permit has been issued,” the agency writes in its brief, “the agency has adhered since 1979 to the view that it possesses the statutory authority to do so.”

In a friend-of-the-court brief, the U.S. Chamber of Commerce and the American Farm Bureau Federation argue that the circuit court erred in its broad interpretation of “whenever.” If Congress wanted EPA to have such far-reaching power, the Chamber writes, it would have written into the law, “’whenever, including even after a permit issued.’”

Federal District Court Judge Amy Berman Jackson

The case now goes back to U.S. District Judge Amy Berman Jackson, who strongly sided with Arch Coal last March.  Jackson mocked the EPA for its attempt to rescind the permit and scolded the agency for “entirely disingenuous” arguments that she said amounted to “magical thinking.”

“Poof,” Jackson wrote of the agency’s arguments.

The EPA is represented by U.S. Solicitor General Donald B. Verrilli Jr. The lead attorney for Arch Coal is Paul Clement, former solicitor general under President Bush and a member of the law firm of Bancroft PLLC. Clement has argued for conservatives on many high-profile cases before the Supreme Court, including immigration and the Defense of Marriage Act. Arch is also represented by Virginia Albrecht and other attorneys with the high-powered law firm of Hunton & Williams.

EPA declined comment on the decision citing the pending litigation.

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