The US Court of Appeals for the DC Circuit denied Arch subsidiary Mingo Logan Coal’s appeal in the ongoing controversial case against the EPA’s permitting power.
In April, a three-judge panel ruled that the EPA had the right to retroactively veto a water pollution permit for Mingo Logan Coal’s Spruce no 1 mountaintop removal mine years after it was issued.
The permit for the mine, which would be one of West Virginia’s largest mountaintop removal coal mines, was granted by the Army Corps of Engineers with input from the EPA in 2007.
But in January 2011, the EPA announced it was going to veto the permit, saying destructive, unsustainable mining practices would cause irreparable environmental damage and threaten the health of residents nearby.
Mingo Logan subsequently filed a lawsuit in March 2012 to get the permit back and the US District Court for the District of Columbia sided with the company.
But in April’s unanimous decision, the appeals court said section 404 of the Clean Water Act did not place a time limit on when the EPA could intervene if it believed there could be an "unacceptable adverse effect" on the environment.
The company lodged a June 7 request for a rehearing of the decision, hiring former US Solicitor General Paul Clement to head the case.
“The authority asserted by the Environmental Protection Agency in this case is as audacious as it is unprecedented,” the June petition said, according to the WV Record.
“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 marks just the 13th time since 1972 that the EPA has used the veto authority and the first time it has acted on a previously permitted mine.
The agency reserves the power for “rare and unacceptable” cases.
It is likely the case will now move to the US Supreme Court.
