COAL:

Supreme Court won't review challenge to EPA's Clean Water Act veto

The Supreme Court today declined to review a broad challenge to U.S. EPA's authority to retroactively veto Clean Water Act permits issued by the Army Corps of Engineers.

Mingo Logan Coal Co., a subsidiary of Arch Coal Inc., challenged EPA's decision to veto parts of a Section 404 dredge-and-fill permit for a sprawling mountaintop-removal strip mine in Logan County, W.Va., four years after it was issued.

By not taking up that challenge, the justices let stand a U.S. Court of Appeals for the District of Columbia Circuit ruling last April that upheld EPA's veto authority.

EPA decided in 2011 to withdraw several parts of the permit that had been issued in 2007, effectively halting development of Arch's Spruce No. 1 mine.

The move was applauded by environmentalists who are critical of mountaintop-removal mining's impact on nearby waterways and had been pressuring EPA to be more aggressive in its oversight.

But businesses decried the decision, saying it called into question whether EPA could revoke an Army Corps permit whenever it sees fit. Critics charged the agency had never before used that authority in a retroactive manner.

"The decision below destroys regulatory certainty and overturns the settled expectations of the regulated community," Arch's attorney, former U.S. Solicitor General Paul Clement, wrote in its petition to the court.

"EPA has an important seat at the table during the permitting process, but the ultimate decision of the Executive Branch is reflected in the Corps' decision to issue a permit," Arch wrote.

Many influential trade groups, including the U.S. Chamber of Commerce and National Association of Manufacturers, intervened in the case in support of the coal company.

A three-judge panel of the D.C. Circuit last April reversed a lower-court ruling and upheld EPA's actions.

Writing for the court, Judge Karen Henderson said the "unambiguous language" of the Clean Water Act "manifests the Congress's intent to confer on EPA a broad veto power extending beyond the permit issuance" (Greenwire, April 23, 2013).

The panel is composed entirely of Republican-appointed judges, including Brett Kavanaugh, an influential conservative jurist. That may explain why the conservative-leaning Supreme Court passed on the case.

Outlook

Arch did not immediately provide comment on today's Supreme Court action, but spokeswoman Kim Link noted that litigation related to Spruce is far from over.

When Arch sued EPA, it challenged its power to scrap any permits retroactively, but also the agency's decision to do so in the Spruce case. The courts decided to take one issue at a time, with the threshold issue going first.

National Mining Association spokesman Luke Popovich said, "We're disappointed, obviously, but now the case will be heard by the district court on the merits."

Environmental groups expressed confidence that EPA would prevail in the ongoing litigation. And they praised the Supreme Court for not taking the case.

"The Clean Water Act, enacted with wide bipartisan and public support, gave EPA broad authority to step in and stop this type of wholesale destruction and pollution of U.S. waters," Earthjustice President Trip Van Noppen said.

"The Supreme Court refusal to hear industry's baseless case confirms that the EPA has the clear legal authority to prevent the dumping of waste whenever it would cause unacceptable harm to communities and the environment."

In a related case, supporters and opponents of the Pebble gold and copper mine in Alaska have been monitoring the Spruce case closely as EPA considers a pre-emptive veto of that mining project.

Twitter: @GreenwireJeremy | Email: jjacobs@eenews.net

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