Appeals court backs EPA in battle over retroactive veto of Clean Water Act permit

A federal appeals court ruled today that U.S. EPA's 2011 retroactive veto of a major West Virginia mountaintop-removal mining project was legal.

The decision by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit confirms EPA's contention that the Clean Water Act's Section 404 grants the agency authority to scrap specifications in dredge-and-fill permits issued by the Army Corps of Engineers.

Writing for the panel, Judge Karen Henderson said "the unambiguous language of subsection 404(c) manifests the Congress's intent to confer on EPA a broad veto power extending beyond the permit issuance." Joining Henderson on the panel were Judges Thomas Griffith and Brett Kavanaugh.

The ruling reverses U.S. District Judge Amy Berman Jackson's decision last year that threw out EPA's veto of the permit for Arch Coal Inc.'s Spruce No. 1 mine in Logan County, W.Va. She accused the agency of relying on "magical thinking" to block key parts of the 2007 permit four years after it had been issued.

But while Berman Jackson said the Clean Water Act was unclear on the issue, the appellate panel cited the law's "unambiguous statutory language" in ruling for EPA.


The Clean Water Act gives the EPA administrator the power to "deny or restrict the use of any defined area for specification" in an Army Corps permit "whenever he determines" it will have negative environmental effects. Arch argued that "whenever" meant during the permitting process.

But Henderson wrote, "Notwithstanding the unambiguous statutory language, [Arch subsidiary] Mingo Logan presses its own view of the language, the statutory structure and section 404's legislative history to maintain that the Congress intended to preclude post-permit withdrawal."

She added, "We find none of its arguments persuasive."

Emma Cheuse, an attorney with Earthjustice, which intervened on behalf of EPA, said the decision "upholds essential protections" under the Clean Water Act.

"Communities in Appalachia can finally breathe a sigh of relief knowing that EPA always has the final say to stop devastating permits for mountaintop-removal mining," she said.

With the ruling in hand, Cheuse urged EPA to be even more aggressive in its mining oversight. "Now, we just need EPA to take action to protect more communities and mountain streams before they are gone for good," she added.

Because Berman Jackson ruled that EPA didn't have the legal authority to retroactively veto the permit, she didn't rule on the actual merits of the agency's decision. That is why the appeals court is sending the case back to the district court for further consideration.

The ruling came less than two months after oral arguments in March. Both Arch and EPA had agreed to expedited consideration of the issue because of the company's desire to move forward with mining activities on the site.

Numerous industries joined in briefs to the court against the EPA veto, saying that the government's ability to scrap permits after they are issued would have a chilling effect on the economy (Greenwire, March 13).

John Iani, former administrator of the EPA Region 10 office in Seattle under President George W. Bush and now a Seattle-based lawyer, has predicted that the legal controversy could reach the Supreme Court. Arch has yet to indicate how it will proceed.

Today's ruling is also likely to reignite the debate in Congress over EPA's retroactive permit vetoes, which had waned after Berman Jackson's ruling. Earlier this year West Virginia's congressional delegation introduced H.R. 524 to prevent retroactive vetoes.

Click here to read the ruling.

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