EPA chief went too far, federal judge says

Steve Korris Oct. 21, 2011, 10:34am


WASHINGTON (Legal Newsline) - Environmental Protection Agency administrator Lisa Jackson exceeded her authority by imposing new water quality rules on mountaintop coal mines, a judge has ruled.

U. S. District Judge Reggie Walton decided Oct. 6 to grant summary judgment to National Mining Association, West Virginia, Kentucky and others on claims she intruded on duties of the Army Corps of Engineers.

"The court does not find any of the federal defendants' arguments convincing," he wrote. "The statutory language explicitly establishes the Secretary of the Army, acting through the Corps, as the permitting authority."

He found support for his position from many sources, including cases Jackson cited to support her position.

The litigation continues, and the Commonwealth of Kentucky has already filed an amended complaint alleging economic damage including loss of 3,800 jobs.

In 2009, Jackson announced her agency would screen applications from mines in six Appalachian states to identify those requiring "enhanced coordination."

She asserted authority under the Clean Water Act.

The mining association, the states, coal companies, and others sued for an injunction last year, and Walton denied it in January of this year.

Both sides moved for partial summary judgment on Jackson's authority, and Walton heard arguments on Sept. 16.

He issued an opinion in 20 days, fast action by federal court standards.

He wrote that Jackson maintained that she and her agency acted within their broad discretion to carry out statutory functions.

He wrote that she specifically asserted that her actions were a necessary corollary to her veto authority.

He wrote that she seized on the law's requirement of coordination and asserted that the new rules were the statutory minimum prescribed by Congress.

He wrote that she argued that even if she modified regulations, such modification was within her discretion.

None of her arguments worked.

Walton wrote that EPA has a role to play, but carving out limited circumstances for its involvement in permits appeared to be a statutory ceiling on its involvement.

He wrote that the statute wasn't ambiguous in establishing the Corps as principal player and specifying certain roles for EPA to play.

"Thus, if a responsibility involving the permitting process has not been delegated to the EPA by Congress, that function is vested in the Corps as the permitting authority," he wrote.

He rejected Jackson's claim that she adopted procedural rules rather than legislative rules that would have required notice and comment.

He found that cases she cited didn't help her case.

He wrote that in one, the U.S. Supreme Court prohibited an unwarranted judicial examination of a rulemaking proceeding.

He wrote that the case before him was "a wholly necessary judicial examination into whether the federal defendants should have satisfied the statutory minimum of the Administrative Procedures Act by subjecting the rules to notice and comment."

He wrote that removing the task of applying guidelines to permits from the Corps and bestowing it on EPA signified a substantive change of the permit framework.

Eight days later, National Mining Association, West Virginia, and Kentucky amended their complaints.

The association claimed EPA has issued eight permits among 79 applications the agency identified for enhanced coordination in 2009.

The association claimed 50 were withdrawn and 18 await the start of the process.

Kentucky claimed EPA hasn't acted on 21 permits it objected to last year.

It alleged that operators withdrew applications or reduced the size of projects.

West Virginia claimed EPA imposed standards "to meet the goal it has held since 2009: destroying the mining industry in Appalachia."

Walton plans a hearing in June.

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Organizations in this Story

Commonwealth of Kentucky
700 Capitol Avenue
Frankfort, KY 40601

U.S. Environmental Protection Agency (EPA)
1200 Pennsylvania Ave NW
Washington, DC 20460

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