House bill would curb EPA veto power, restore revoked mountaintop permit

A West Virginia Republican filed a bipartisan House bill yesterday that would prevent U.S. EPA from retroactively vetoing water permits as it did earlier this month, blocking the largest-ever proposed mountaintop coal mine in Appalachia.

Rep. David McKinley's legislation (H.R. 457) also aims to reverse EPA's permit veto by setting an effective date of Jan. 1.

At issue is EPA's Jan. 13 veto of a Clean Water Act permit issued by the Army Corps of Engineers to the proposed 2,200-acre Spruce No. 1 mountaintop mine, citing damage the project would do to the environment and nearby West Virginia communities (Greenwire, Jan. 13).

West Virginia's congressional delegation bristled in the aftermath of EPA's veto. The coal-mining industry directly employs 31,000 in Appalachian states and produces about 11 percent of the nation's coal.

Environmentalists have long fought mountaintop mining, which involves blasting into mountains to unearth seams of coal. Opponents say the practice alters the landscape and dumps debris into streams that can leach toxins into the water.


Backers of the mining practice say EPA's crackdown is illegal and will devastate the Appalachian region's fragile economy (Greenwire, Jan. 24).

"For years, the EPA has been bullying coal companies and the workers they employ," McKinley said in a statement. "But this isn't just about the Spruce Mine. If their new policy of retroactive revocation is allowed to stand, dozens of heavily-regulated industries and hundreds of thousands of American jobs hang in the balance."

The bill is the first for McKinley, a freshman who captured a seat last November that had been held by Democrats for more than 40 years. His bill is co-sponsored by Reps. Shelley Moore Capito (R-W.Va.), Nick Rahall (D-W.Va.), Bill Johnson (R-Ohio) and Bob Gibbs (R-Ohio).

In his statement, McKinley said that the White House's top regulatory official, Cass Sunstein, has said the Supreme Court has generally frowned upon retroactive regulatory action of the type used in the Spruce mine case.

Earthjustice attorney Joan Mulhern predicted that the bill, if passed, would likely fail to reverse EPA's veto decision because courts generally disapprove of retroactive legislation.

"The Spruce permit is gone. It has been vetoed. It is a final action," Mulhern said. "That's not to say they couldn't reapply sometime in the future, but the permit that has been issued has been legally revoked by EPA, and it's gone. And I don't believe it's in Congress' power to retroactively revive a permit that no longer exists."

Mulhern also said EPA is on firm legal footing because of the thousands of public comments received in favor of stopping the mine and the agency's detailed written justification for its decision.

"Those who claim that EPA's concerns were new or a surprise or that it came out of the blue are simply not familiar with the facts of the case," she said.

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