WASHINGTON, D.C. — Two West Virginia Congressmen expressed disappointment with a federal court’s ruling which stated that the Environmental Protection Agency had the authority to retroactively veto a water pollution permit for one of the state’s largest mountaintop removal mines years after it was issued.
U.S. Sen. Joe Manchin and U.S. Rep. Nick Rahall (both D-W.Va.), released statements after the U.S. Court of Appeals for the District of Columbia Circuit ruled that the EPA had legal authority to retroactively revoke the Logan County Spruce No. 1 Mine permit.
“For too long now, the EPA has been waging a destructive war against Appalachia coal mining and it is costing countless American jobs and investment,” Manchin said. “If we are ever going to recover from our fragile economy, American businesses must have certainty in the marketplace. It is simply common sense to allow companies that already have been granted permits to continue the work they have started. We simply cannot afford to stifle energy production and good-paying jobs.”
Rahall echoed Manchin’s sentiments, saying that the decision would “open the floodgates to disrupting coal mining in West Virginia and elsewhere by granting the EPA unprecedented and seemingly limitless authority over Clean Water Act 404 permits.”
“The court, in this decision, gives license to the EPA to retroactively veto any Clean Water Act 404 permit ‘whenever’ the Administrator deems necessary, rendering all such permits for any range of industrial or construction activities throughout the country completely meaningless,” Rahall said.
Rahall vowed to reintroduce the Clean Water Cooperative Federalism Act, which made it through the Republican-controlled House last year, to the bar EPA “from using the guise of clean water” to hinder the industry.
The holder of the permit, St. Louis-based Arch Coal, said it was disappointed in the ruling, but downplayed it as being “related to procedural aspects” of the case. The case goes back to U.S. District Court for further proceedings. It was only the 13th time since 1972 that the EPA had used the veto authority and the first time it had acted on a previously permitted mine.
In January 2011, the EPA revoked a permit that the U.S. Army Corps of Engineers had issued four years earlier to Arch and its Mingo Logan Coal Co. subsidiary. The EPA concluded that destructive and unsustainable mining practices at the 2,300-acre Logan County mine would cause irreparable environmental damage and threaten the health of communities nearby.
Last fall, Arch argued that Congress never intended to give the EPA “unbridled power” over water-pollution permits for coal mines, and that final authority to issue, oversee and enforce permits issued under section 404 of the Clean Water Act lies solely with the corps.
The EPA countered that while the Clean Water Act lets the corps issue permits for the dumping of fill material, another section of the law gives the EPA the unambiguous right to “prohibit, deny, restrict or withdraw specification of fill disposal sites.”
That power was created in a legislative compromise the EPA says was intended to let the agency do its job and prevent unacceptable environmental damage. The EPA says it can invoke that authority before, during or after the corps’ permitting process.
National Mining Association President Hal Quinn said the decision “has pulled the regulatory rug out from under the feet of U.S. companies.”
“As a result, a cloud of uncertainty now hangs over any project,” he said, “and companies will no longer have the assurance required to encourage investments, grow our economy and create U.S. jobs.”
Manchin said the decision was “yet another example of bureaucracy at its worst.”
“One agency grants a permit, another agency takes it away and business suffers in the end. The federal government should be an ally, not an adversary, in helping to strike a balance between protecting the environment and creating good American jobs,” Manchin said. “I remain hopeful that the merits of this case will show that the EPA has overreached in withdrawing the Spruce No. 1 Mine permit.”