WATER POLLUTION:

Obama admin will appeal court ruling that erased EPA mine veto

The Obama administration is appealing a federal court ruling that scrapped U.S. EPA's retroactive veto of a large mountaintop removal coal mining permit in West Virginia, according to court documents filed Friday and today.

In March, U.S. District Judge Amy Berman Jackson for the District of Columbia said EPA overstepped its bounds when it blocked part of an Army Corps of Engineers permit for Arch Coal Inc.'s Spruce No. 1 mine in Logan County (E&ENews PM, March 23).

Environmentalists and industry leaders alike agree that, barring congressional action, the courts likely will decide the bounds of the Clean Water Act when it comes to Section 404 dredge-and-fill permits issued by the Army Corps with EPA participation.

"We believe the district judge made very careful and compelling arguments on both the unreasonableness of EPA's action and on the law and hope the appeals court concurs," National Mining Association spokesman Luke Popovich said in a statement.

Arch Coal spokeswoman Kim Link echoed Popovich: "We're hopeful the appellate court agrees with Judge Jackson's well-reasoned opinion regarding EPA's unprecedented action."

Environmentalists are confident of the agency's legal standing. Earthjustice attorney Emma Cheuse in an interview highlighted the importance of the case, saying it involves EPA's ability to protect U.S. waters.

"We're glad to see the EPA's decision to stand up to the coal industry and continue defending the basic right of everyday Appalachian families to clean water," said a statement from several groups, including the Sierra Club, Earthjustice and the West Virginia Highlands Conservancy.

EPA vetoed the Spruce permit early last year citing environmental concerns. The action came after the Army Corps gave Arch its blessing for the project in 2007. Leaders of numerous industries, including the U.S. Chamber of Commerce, cried foul at EPA's ability to scrap permits long after they are issued.

Jackson, in a ruling that pleased the industry and shocked many environmentalists, suggested that EPA relied on "magical thinking" to justify its veto.

She wrote, "It posits a scenario involving the automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and consideration. Poof!"

The mining industry, including backers of the Pebble Limited Partnership gold and copper mine in Alaska, are citing Jackson's ruling as evidence of the limits of EPA power. Jackson herself said the statute was "awkwardly written and extremely unclear."

But EPA and its environmental backers, including Cheuse, say that Section 404 of the Clean Water Act gives the agency authority to veto permits both retroactively and pre-emptively.

"As EPA's Spruce veto determination recognized," the groups said, "sound science shows that it is unacceptable for a coal company to destroy more than 2,000 mountain acres and fill over six miles of vital streams with mining waste pollution, and we will continue standing behind EPA's decision to prevent the irreversible devastation to waterways and communities that the Spruce No. 1 mine would bring."

John Iani, former administrator of the EPA Region 10 office in Seattle under President George W. Bush and now a Seattle-based attorney, has said the issue could reach the Supreme Court.

For its part, Arch Coal has indicated its desire to begin operations on the Spruce property. The company wants U.S. District Judge Robert Chambers for the Southern District of West Virginia to reopen a related case on the merits of the Army Corps permit. That case has been stalled pending the outcome of EPA's veto case.

Environmentalists and administration attorneys are against reopening the case and allowing the company to begin mining operations because of the pending appeal.

But Arch attorneys said that if EPA loses the veto battle in the U.S. Court of Appeals for the District of Columbia Circuit, "it will then claim the same with respect to a petition for certiorari to the United States Supreme Court. All of that, of course, could take years."

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