West Virginia Record

Sunday, July 21, 2019

Court rules against EPA in Spruce Mine case

By Michael Tremoglie and Chris Dickerson | Mar 26, 2012



WASHINGTON (Legal Newsline) -- In yet another court case to limit what has been termed an Obama administration EPA power grab, a ruling has resulted in yet another court saying that the EPA is arrogating too much power.

The March 23 ruling by the U.S. District Court for the District of Columbia in the case of Mingo Logan Coal v. EPA came two days after the Supreme Court ruled against the EPA in Sackett v. EPA.

This case –- like Sackett –- involved the EPA's enforcement of the Clean Water Act. Here, the EPA tried to withdraw permission to use two streams as discharge sites. The permission was granted three years earlier by the Army Corps of Engineers.

Just as the Supreme Court ruled in Sackett, the District Court ruled that the EPA's interpretation of its authority to enforce the CWA was erroneous.

Mingo Logan filed the lawsuit because the company believed that the EPA did not have the authority to modify or revoke the permit. They also thought the revocation was unlawful and the permit was still valid.

Judge Amy Berman Jackson, an Obama appointee, wrote that the "EPA exceeded its authority." She also made the observation that the EPA's action was extraordinary.

"This attempt to withdraw the specification of discharge sites after a permit has been issued is unprecedented in the history of the Clean Water Act," she wrote.

The court ruling has received praise from several quarters -– most notably a Democrat governor and a Democrat senator.

"This is a huge victory for West Virginia and our coal miners," Gov. Earl Ray Tomblin said. "I want to thank Judge Jackson for recognizing that the EPA and the federal government were completely wrong in revoking this permit.

"I now call upon Lisa Jackson and the EPA to admit that they have gone too far -- enough is enough. Issue our permits so that we can put our people back to work and provide the resources that will power America."

Sen. Jay Rockefeller, D-W.Va., agreed.

"The issue with the Spruce Mine permit has always been basic fairness," he said. "The company received a permit five years ago from the Corps. The EPA participated in that process on the front end but then tried to step in again after the permit was issued and veto it retroactively.

"I wrote to them on several occasions to make the point that the federal government has an obligation to be consistent and fair. Today the court clearly ruled that the EPA overstepped its authority. Our businesses and workers must have greater certainty so that they can do their jobs."

Some have said the case illustrates the ideological turn the EPA has taken since President Obama has taken office. Coalitions of business groups have filed lawsuits to prevent many of the recent regulations the administration has imposed. There are two other important cases docketed for federal court this year in response to EPA regulations.

EME Homer City Generation LP v. EPA, will be heard in the U.S. Court of Appeals for the District of Columbia Circuit April 13. This case concerns the EPA rule regulating airborne pollution that travels across state lines.

Oral arguments for the National Environmental Development Association's Clean Air Project et al. v. EPA will be heard May 3 also in the DC Court of Appeals. This case involves several states and industry groups which want the court to invalidate the new sulfur dioxide limits the EPA placed into effect last year.

As for the Spruce Number One Mine, it now has the OK to move forward on what might be the largest mountaintop removal mine project in state history.

"It was one of the stronger decisions and one of the more directed or practical written decisions that I've seen," West Virginia Coal Association President Bill Raney said on Monday's MetroNews Talkline radio show with host Hoppy Kercheval.

"I don't know, specifically, what they're (Arch Coal) going to do. The coal market, certainly, has a bearing on all of that at this point. Had this permit been allowed to go when it was issued and authorized, then the market was very strong.

"I just think that it's reassuring that they've got the authorization to do it now."

The Republican candidate for state Attorney General also weighed in on the matter.

"Judge Jackson confirmed what those of us in West Virginia have known for some time - the EPA acted illegally when it revoked the permit previously approved for the Spruce No. 1 mine," Patrick Morrisey said. "As we celebrate this decision, let us not lose sight of the fact that this represents only one battle in Obama's war against coal in West Virginia.

"As Attorney General, I will work to prevent the EPA from engaging in illegal power grabs that cost West Virginia jobs. The Office of Attorney General must fight overreaches by the federal government to ensure that West Virginians realize the benefits of our vast energy reserves."

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