Business groups call for reversal of EPA veto of W.Va. coal mine permit

Jessica M. Karmasek Sep. 21, 2012, 10:15am




WASHINGTON (Legal Newsline) - Ten business groups, in a filing this week, expressed their support for a federal court ruling reversing the federal Environmental Protection Agency's veto of a West Virginia coal mine's water pollution permit.

The 10 groups include: the U.S. Chamber of Commerce, the National Association of Manufacturers, the American Road and Transportation Builders Association, the Association of American Railroads, the National Association of Home Builders, the American Farm Bureau Federation, the National Council of Coal Lessors, the Associated General Contractors of America, the National Mining Association and the National Stone, Sand and Gravel Association.

The U.S. Chamber's Institute for Legal Reform owns Legal Newsline.

The EPA is attempting to revoke Mingo Logan Coal Company's Clean Water Act Section 404 permit to mine the Spruce No. 1 mine in Logan County.

The Army Corps of Engineers issued the Spruce permit in 2007.

The EPA vetoed the permit almost three years later, even though the West Virginia Department of Environmental Protection had certified that the coal company's operations complied with state water quality standards and applicable mining regulations.

In March, the U.S. District Court for the District of Columbia reversed the EPA's veto, siding with Mingo Logan and the State of West Virginia.

Judge Amy Berman Jackson, in a lengthy written decision, criticized the agency's actions and concluded that it lacked the statutory authority to revoke the Spruce permit.

The EPA appealed Jackson's decision to the U.S. Court of Appeals for the District of Columbia Circuit in July.

In their amicus brief, filed in the D.C. Circuit Wednesday, the business groups argue that the impact of the court's ruling will be felt throughout the U.S. economy.

"Many valuable investment projects involve activities that require federal Clean Water Act permits," they wrote, adding that the regulatory process for obtaining a Section 404 permit from the Corps is "painstakingly detailed" and "well-established" in practice.

"This certainty enables investors to reasonably account for permitting costs when deciding whether it makes sense to move forward with a planned project."

But an adverse ruling in this case would change all of that, the groups contend.

"The U.S. Environmental Protection Agency has for the first time ever exercised what it claims is its plenary authority to invalidate -- at any time -- an existing Section 404 permit by withdrawing the underlying specification of a disposal site," they wrote in the 23-page brief.

"In so doing, the EPA has injected a new and untenable level of uncertainty into the investment planning process for the thousands of project proponents requiring Section 404 permits."

Also Wednesday, West Virginia Gov. Earl Ray Tomblin, on behalf of the State, filed an amicus brief in support of Mingo Logan.

"Hundreds of miners are out of work because of the unjustified attacks on West Virginia coal miners and their families," Tomblin said in a statement Wednesday.

"I will not back down until the federal EPA finally acknowledges -- once and for all -- that it's overstepping its bounds."

The State's "friend of the court" brief also urges the D.C. Circuit to affirm Jackson's decision, vacating the EPA's veto.

In particular, it contends the agency "invaded" the Corps' authority under the CWA and "harmed" Mingo Logan.

"More importantly to the State, the EPA also usurped the State's rightful place as the primary protector of its waters under the CWA and the primary regulator of mining under SMCRA (Surface Mining Control and Reclamation Act)," Michael B. Hissam, an attorney at Charleston law firm Bailey and Glasser LLP, wrote in the State's 18-page filing.

On Thursday, West Virginia's junior senator, Joe Manchin, introduced legislation to reinforce efforts to rein in the EPA's "repeated overreach" under the CWA.

Manchin, the state's former governor and a Democrat, introduced the legislation along with U.S. Sen. Pat Toomey, R-Pa.

The Senate legislation is the companion bill to a bipartisan House measure -- the Clean Water Cooperative Federalism Act, or HR 2018 -- sponsored by U.S. Rep. Nick Rahall, D-W.Va., and U.S. Rep. John Mica, R-Fla.

Their bill, which passed the House 239-184, was supported by a coalition of business groups, including three of which filed the amicus brief in support of Mingo Logan this week -- the National Association of Manufacturers, the National Mining Association and the American Farm Bureau Federation.

Manchin said the Senate bill would restore and guarantee the "proper balance" between states and the federal government in a way that protects water quality while also supporting economic growth and job creation.

The measure would clarify that Congress intended states to have the primary responsibility in overseeing their land and water resources, not the EPA.

"I've fought against the overreach of the EPA for my entire career, and I'll continue to make sure that states take the lead when it comes to making sure they have a balance between their environment and their economy," Manchin said in a statement.

"The fact is, federal courts agree with us: the EPA has overstepped its bounds. They're now 0-3 in federal court cases involving their proper role in administering the Clean Water Act.

"With that being said, I know the fight isn't over until Congress makes it crystal clear that the EPA needs to operate within its proper boundaries, and that's why we're introducing this legislation."

From Legal Newsline: Reach Jessica Karmasek by email at

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Organizations in this Story

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

National Association of Manufacturers
733 10th St NW
Washington, DC 20001

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