EPA, Sierra Club strike out in federal court

Tomblin

WASHINGTON, D.C. -– The Environmental Protection Agency exceeded its authority by issuing a guidance document about Clean Water Act compliance, a federal judge has ruled. It was the latest in a series of similar federal court rulings which have criticized the EPA for arrogating power. "The EPA's interpretation of the regulation, an interpretation on which it has premised the Final Guidance, is therefore inconsistent with the regulation itself," wrote Judge Reggie Walton of the U.S. District Court for the District of Columbia. "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." Gov. Earl Ray Tomblin applauded the 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. I have every faith that DEP Secretary Huffman and his administration will strike a reasonable balance between protecting our mountains and streams, and issuing new mining permits in support of our coal industry. "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. 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 Sierra Club said. "This court found that, to protect Appalachian streams from the harm caused by mining pollution, EPA should have issued a formal regulation instead of a guidance document. On these grounds, the court vacated the EPA's conductivity guidance." 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." "Today's decision has truly given coal miners and coal mining communities their 'day in court' and has affirmed NMA's longstanding belief that EPA overreached its authority in its virtual moratorium on Eastern coal mining permits and denied those operations the protections provided for under the law. It is now time to get miners back to work by allowing the state permitting agencies to do their jobs." This is consistent with what the judge had said. Walton concluded his opinion by writing, "the sole inquiry for the Court is the legality of the Final Guidance, and, for the reasons set forth above, that inquiry yields the conclusion that the EPA has overstepped its statutory authority under the CWA and the SMCRA, and infringed on the authority afforded state regulators by those statutes. Accordingly, because the EPA has exceeded its statutory authority, the plaintiffs' motion for partial summary judgment is granted and the defendants' motion for partial summary judgment is denied." 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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