WEST VIRGINIA RECORD

WASHINGTON – Former Solicitor General Paul Clement’s first action as counsel for Mingo Logan Coal Company was to ask a federal appeals court to grant a rehearing of a case involving a revoked Clean Water Act permit.

On June 7, Clement and other attorneys from Bancroft PLLC filed a petition for rehearing en banc, which, if granted, would have the controversial case heard by the entire roster of judges on the U.S. Court of Appeals for the D.C. Circuit.

A three-judge panel ruled in April that the federal Environmental Protection Agency had the authority to revoke provisions of a CWA permit that allowed the company to use two streams as disposal sites for the company’s Spruce Mine No. 1 site in Logan County.

Mingo Logan Coal is owned by Arch Coal and hired Clement to represent it in the case on June 5.

“The authority asserted by the Environmental Protection agency in this case is as audacious as it is unprecedented,” the petition says.

“EPA claims nothing less than a unilateral power to nullify, at any time, a Clean Water Act permit issued years ago by a different agency, even though the permitting agency has found that EPA’s concerns present no new information and were addressed in the permit when it was issued.

“EPA’s sweeping interpretation of its limited power over ‘specifications’ under section 404(c) of the CWA is not just breathtaking. It is also – as the District Court correctly concluded – wrong.”

The case made headlines on April 23 when the D.C. Circuit ruled the EPA could withdraw terms of a Clean Water Act permit already granted to the company by the Army Corps of Engineers for its work on a mountaintop removal mine in Logan County.

The decision to withdraw the specification of discharge sites after a permit was issued is unprecedented in the history of the Clean Water Act, U.S. District Judge Amy Berman Jackson wrote in March 2012.

D.C. Circuit Judge Karen L. Henderson wrote the court’s opinion.

“But again, (the Clean Water Act’s) language is plain with regard to its enumerated ‘unacceptable adverse effects’: the Administrator retains authority to withdraw a specified disposal site ‘whenever’ he determines such effects will result from discharges at the sites,” Henderson wrote.

“And when he withdraws a disposal site specification, as he did here, the disposal site’s ‘terms and conditions specified’ in the permit… are in effect amended so that discharges at the previously specified disposal sites are no longer in ‘(c)ompliance with’ the permit – although the permit itself remains otherwise in effect to the extent it is usable.”

A footnote mentions that EPA “has made clear” that a permittee will not be penalized for discharges made under a permit before the effective date of the withdrawal of any of its terms.

The permit was issued on Jan. 22, 2007, by the Army Corps of Engineers. It authorized Mingo Logan to discharge fill material from its Spruce No. 1 coal mine into nearby streams, including the Pigeonroost and Oldhouse branches and their tributaries.

Nearly three years later, the EPA published a final determination on the permit that withdrew those two streams as disposal sites.

Mingo Logan argued the attempt to modify the permit was unlawful. Jackson agreed in March 2012 and ruled in favor of Mingo Logan.

“The regulations do not explicitly address the post-permit issue, but they were published with a preamble that states that the agency has the power to withdraw a specification before, during or after the permit process,” Jackson’s ruling says.

“EPA argued that the court should find that interpretation to be reasonable because, after all, the regulations were the result of the notice and comment process.

“But that argument was not persuasive because EPA insisted at the same that other statements in the preamble – in particular, those responding to commenters’ concerns about the legality and fairness of a post-permit veto – were simply policy guidelines that did not tie its hands.

“Why would the fact that the interpretation survived notice and comment be meaningful if the agency’s specific response to those comments is not considered to be part of the interpretation?”

In overturning Jackson, the D.C. Circuit noted that the permit expressly advised that the Corps “may reevaluate its decision on the permit at any time the circumstances warrant.”

Clement was solicitor general – the office that represents the federal government in issues before the U.S. Supreme Court – from 2004-08. He is routinely hired by litigants with cases at the U.S. Supreme Court.

Recently, he represented the 26 states that challenged the Patient Protection and Affordable Care Act, or “Obamacare,” and Republican members of the House of Representatives defending the Defense of Marriage Act.

“Congress gave the Army Corps of Engineers the principal permitting authority for discharges of dredged or fill material under section 404; EPA’s role is secondary,” his petition says.

“The panel’s decision to vest an agency having a subsidiary role with the authority to eviscerate the final agency action of a different agency with the primary statutory role is unprecedented and wrong.”

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.