WASHINGTON, D.C. – A federal appeal court chose to uphold the U.S Environmental Protection Agency’s veto of a permit for one of the largest mountaintop removal coal-mining proposal’s in West Virginia’s history, which dissenting Judge Brett Kavanaugh criticizes, stating that the EPA must go “back to the drawing board” and weigh the costs and benefits of revoking the permit.

The U.S. Court of Appeals for the District of Columbia ruled Tuesday by a 2-1 vote in favor of the EPA.

Judge Karen LeCraft Henderson said that in 2007, the U.S. Army Corps of Engineers issued Mingo Logan Coal Co. a permit to excavate the tops of several West Virginia mountains, extract exposed coal and dispose of the excess soil and rock in three surrounding valleys containing streams.

“Four years later, after additional study, the [EPA] decided that the project would result in ‘unacceptable adverse effect[s]’ to the environment…” the opinion states. “The EPA therefore withdrew approval from two of the disposal sites, which together ‘make up roughly eighty eight percent of the total discharge area authorized by the permit.”

In 2013, Mingo Logan challenged the EPA’s statutory authority to withdraw the two sites from the Corps permit after it had been issued, however, Henderson wrote, “we determined that the Clean Water Act authorized the EPA to do so.”

“We then remanded the case to the district court to consider Mingo Logan’s remaining Administrative Procedure Act challenges,” Henderson wrote, “The district court thereafter rejected them.”

Mingo Logan then brought the appeal to the federal appeals court, seeking resolution of the APA claims.

Mingo Logan argues that the EPA failed to engage in reasoned decision making by ignoring Mingo Logan’s reliance on the initial permit, impermissibly considering the effects of downstream water quality and failing to explain adequately why the project’s environmental effects were so inacceptable as to justify withdrawal.

“We conclude that the EPA did not violate the APA in withdrawing specification of certain disposal areas from the permit; rather, it considered the relevant factors and adequately explained its decision.”

Kavanaugh, in his dissent, wrote that the EPA revoked a CWA permit without considering the costs of doing so, and, for that reason, must go back to the drawing board and weigh both the costs and benefits of revoking the permit before making its decision.

“EPA must consider both costs and benefits before it vetoes or revokes a permit under Section 404 of the Clean Water Act,” he said. “That much is common sense and settled law.”

Kavanaugh said the bottom line is that EPA considered the benefits to animals of revoking the permit, but it never considered the costs to humans—the coal miners, Mingo Logan’s shareholders, local business, and the like—of revoking the permit.

“In my view, EPA’s utterly one-sided analysis did not come close to satisfying the agency’s duty under the Administrative Procedure Act and relevant Supreme Court precedents to consider and justify the costs of revoking Mingo Logan’s previously issued permit.”

Kavanaugh said he was not deciding how EPA should weigh the costs and benefits for revoking the permit, or what outcome the agency should reach, but that it must consider both costs and benefits before making a decision.

“EPA did not do so here,” he said. “Under the Administrative Procedure Act and applicable Supreme Court precedent, that is not acceptable. I respectfully dissent.”

Henderson wrote that Mingo Logan’s argument “fundamentally misinterprets what the EPA does in evaluating changes in water quality attributable to the disposal of spoil in designated streams.”

“It is true that section 402 grants a qualifying state broad authority to regulate its water quality…and that regulation under sections 402 and 404 is generally distinct. As the district court concluded, however, there is an important difference between ‘regulating’ pollutant discharge under section 402 and identifying unacceptable adverse effects on four specific categories of resources as a result of spoil disposal under section 404(c).”

In 2007, the U.S. Army Corps of Engineers issued Mingo Logan a permit to excavate the tops of several West Virginia mountains, extract exposed coal and dispose of the excess soil and rock in three surrounding valleys containing streams.

In January 2011, the EPA rescinded the corps’ approval to dump waste rock and dirt into 6.6 miles of Pigeonroost Branch, Oldhouse Branch and their tributaries. It allowed the mining to continue on another site, which buried nearly one mile of streams in the Seng Camp Creek watershed, because work there already had begun.

The EPA cited the growing scientific evidence that mountaintop removal mining significantly damages water quality downstream and noted an independent engineering study that found Arch Coal could have greatly reduced the Spruce Mine’s impact.

U.S. Court of Appeals for the District of Columbia Circuit case number: 14-5305




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