COAL:

Appeals court upholds Obama's crackdown on mountaintop mining

This story was updated at 2:30 p.m. EDT.

A federal appeals court today sided with U.S. EPA in a broad challenge from two states and the mining industry to controversial Obama administration policies aimed at addressing the environmental effects on waterways of mountaintop-removal coal mining.

The ruling from the U.S. Court of Appeals for the District of Columbia Circuit is a major win for the administration and reverses a lower court ruling siding with West Virginia, Kentucky and a host of mining interests.

At issue are two policies issued shortly after President Obama took office that sought to address water contamination near mining operations by placing more stringent requirements on Clean Water Act permits.

In June 2009, EPA and the Army Corps of Engineers adopted an "enhanced coordination process" that allowed EPA to screen Section 404 dredge-and-fill permit applications before the corps approved them.

Two years later, EPA issued a "final guidance" that required state authorities to impose more restrictive discharge requirements on separate National Pollutant Discharge Elimination System, or NPDES, permits.

The states, coal companies and trade groups led by the National Mining Association challenged both policies, arguing that they exceeded EPA's statutory authority and amounted to new regulations that required public notice and comment periods.

The D.C. Circuit, in a unanimous ruling, disagreed.

"In our view, EPA and the Corps acted within their statutory authority when they adopted the Enhanced Coordination Process," wrote Judge Brett Kavanaugh, a Republican appointee. "And under our precedents, the Final Guidance is not final agency action reviewable by the courts at this time."

The case stems from the administration's effort to increase oversight of mountaintop-removal mining because of the potential adverse environmental effects on waterways that flow from the blasting of mountaintops to expose coal seams.

Shortly after Obama took office, separate litigation lifted a hold on 108 permit applications at the corps. Had the administration approved them all, it would have signed off on more mountaintop projects than the entire George W. Bush administration.

But the policies at issue in the current case were an attempt to allow EPA and the corps an opportunity to more carefully scrutinize the applications. The enhanced coordination process allowed EPA to take a closer look at the applications for their environmental effects and ensure they met Clean Water Act requirements.

Challengers contended that EPA was overstepping its authority because the Clean Water Act did not expressly enumerate such coordination.

But Kavanaugh shot down that argument.

"No statutory provision forbids EPA from consulting with or coordinating with the Corps, or vice versa," Kavanaugh said. "Indeed, one of the main goals of any President, and his or her White House staff, is to ensure that such consultation and coordination occurs in the many disparate and far-flung parts of the Executive behemoth."

He added that the coordination does not change the ultimate outcome -- the corps still makes the "ultimate decision" on approval.

The "final guidance" required state authorities to consider the effect proposed mining projects would have on electrical conductivity in nearby waterways, which research increasingly suggests poses a risk to aquatic wildlife.

The states and trade associations contended that the proposal amounted to a "legislative rule" that therefore required a public notice and comment period.

Kavanaugh, with support of the unanimous panel, disagreed, though he was critical of the administration. He said that it is hard to ascertain what the proposal is -- a legislative rule, interpretive rule or statement of policy.

"That inquiry turns out to be quite difficult and confused," Kavanaugh said. "It should not be that way."

Ultimately, Kavanaugh classified it as a rule of procedure, which does not require notice and comment and is not eligible for judicial review before any enforcement action has taken place.

If a mining company is denied a permit because of the guidance, Kavanaugh said, the company could then challenge that decision in court.

According to EPA, Kavanaugh wrote, "as a legal matter, the Final Guidance is meaningless." State permitting authorities, he said, are "free to ignore it."

Enviros cheer

The appeals court ruling represents another major setback for the mining industry's efforts at fighting the administration's crackdown on mountaintop-removal mining.

In that case, Arch Coal Inc. requested a full appeals court rehearing. NMA and its allies may do the same in this case. They have yet to respond to the decision.

Companies cheered when lower court judges struck down the guidance and enhanced coordination, along with EPA's retroactive veto of the Spruce mountaintop-removal mining project in West Virginia. But that too was upheld on appeal.

Derek Teaney, senior attorney for the group Appalachian Mountain Advocates, which is involved in numerous lawsuits against mining companies and regulators over coal mining, saw the ruling as not only a win but also an invitation to action.

"With today's ruling, we expect EPA to hold the industry and the states accountable to prevent the devastation associated with mountaintop-removal coal mining," he said.

Earthjustice attorney Emma Cheuse, who was involved in representing environmental groups in the litigation, also pressed the administration to continue focusing on Appalachian strip mining.

"Today's ruling is a victory for all communities facing the water and health problems associated with mountaintop-removal mining," she said, stressing new research about the practice's effects.

"The Court of Appeals definitively rejected the coal industry's attempt to derail common-sense steps taken by EPA and the Army Corps to finally start doing their job to protect people and clean water from the unacceptable harm caused by this destructive form of coal mining."

EPA said it was pleased with the ruling. "We are committed to consistently using our authority under the Clean Water Act to protect the health and environment of Appalachian communities," said an agency statement. "The Agency is working with the states, mining companies, other stakeholders and the public to enable environmentally responsible mining projects to move forward."

The Spruce ruling prompted pro-mining lawmakers to push legislation to make such vetoes illegal. Those lawmakers may also restart efforts at limiting EPA guidance and blocking enhanced coordination from resurfacing.

Click here to read the opinion.

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

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