The permit for Mingo Logan Coal’s Spruce No. 1 mountaintop removal mine in West Virginia was granted by the Army Corps of Engineers, with input from the Environmental Protection Agency, in 2007.
But in January 2011, the EPA announced it was going to veto the permit, saying that destructive, unsustainable mining practices would cause irreparable environmental damage and threaten the health of residents nearby.
Last March, Mingo Logan subsequently filed a lawsuit to get the permit back and The U.S. District Court for the District of Columbia sided with the company.
In a sharply worded opinion, U.S. District Court Judge Amy Berman Jackson said the EPA in its unilateral ruling did not have the authority to invalidate an existing permit.
Calling it a “stunning power for an agency to arrogate to itself”, according to a New York Times report, the judge concluded that the federal agency had used “magical thinking” to justify its actions. Judge Jackson overruled the EPA’s veto.
The permit still stands but the EPA, along with other environmental organisations, are currently appealing Judge Jackson’s ruling.
The EPA says the rare step of rescinding the permit was issued based on “new scientific evidence” that the mine would pollute waterways downstream from the project, destroying water quality and ecosystems and killing fish and other wildlife.
But Mingo Logan argues the EPA could have taken steps to kill the project during the 10 years it took to win initial approval. “EPA was involved every step of the way,” Mingo Logan argued in its appeal brief.
It says that EPA’s attempt to veto the permit four years after it was granted is “patently unreasonable.”
The appeals began Thursday and were heard by Judges Thomas Griffith, Karen LeCraft Henderson and Brett Cavanaugh.
Arch Coal, the controlling company over the 2300 acre complex, has been reasonably quiet about the appeal. They are the nation’s second largest coal producer.
At full production, Spruce is expected to employ 235 miners and create a further 300 indirect jobs.
