Judge rules against EPA

By Michael P. Tremoglie | Aug 2, 2012


WASHINGTON (Legal Newsline) - A federal judge ruled Tuesday that the Environmental Protection Agency exceeded its authority by issuing a guidance document about Clean Water Act compliance.

It was the latest in a series of similar federal court rulings which have criticized the EPA for arrogating power.

Judge Reggie Walton of the U.S. District Court for the District of Columbia wrote, "The EPA's interpretation of the regulation, an interpretation on which it has premised the Final Guidance, is therefore inconsistent with the regulation itself.

"Should the EPA wish to alter the manner by which a reasonable potential analysis is conducted, it is of course free to amend the regulation in a manner consistent with the APA and its own statutory authority. Until it does so, however, it cannot make the reasonable potential determination for the states. The Final Guidance's "recommendation" - which the Court has found is more than a mere suggestion - that permitting authorities should not defer reasonable potential analyses until after permit issuance, therefore finds no support in the CWA."

Democratic West Virginia Gov. Earl Ray Tomblin issued an announcement applauding the court's decision.

"This is a huge victory for West Virginia and our coal miners," Tomblin said. "As the court correctly recognized, the West Virginia DEP knows what's best for West Virginia, not the federal government.

"The EPA continues to treat our coal miners unfairly, and I won't stand for it. Today's decision shows we are moving in the right direction, and West Virginians should know that I'm in this fight until the end. I won't allow these federal bureaucrats to kill the very industry that built our great state."

But the Sierra Club, which was a defendant with the EPA in the litigation, considered the ruling in their favor. According to the Sierra Club, the ruling, "demonstrates that the science is clear and stricter permits are necessary to protect Appalachian waterways from coal mining pollution, including very high levels of conductivity and total dissolved solids that harm aquatic life."

The National Mining Association was one of the plaintiffs. The group's president and CEO, Hal Quinn, issued the following statement in response to the decision:

"NMA is gratified by today's decision in NMA v. Jackson in which the U.S. District Court for the District of Columbia set aside the Environmental Protection Agency's Final Guidance for coal mining operations in Appalachia because the guidance and agency's activities have overstepped the bounds of the law. As we have always maintained, EPA has engaged in an unlawful overreach in its attempt to commandeer the permitting responsibilities the law places with other state and federal agencies."

Many think the EPA is drifting from its mandate. Marlo Lewis is one of them. He is a Senior Fellow at the Competitive Enterprise Institute's Center for Energy and the Environment.

"EPA is an agenda-driven agency; it engages in creative interpretations of environmental statutes to expand it authority. It is practicing results oriented regulation to enlarge its empire," he said.

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