Judge: EPA veto of W.Va. mine permit overreached

The EPA was declared “illogical and impractical” and described as resorting to “magical thinking.”

The Associated Press reports:

The U.S. Environmental Protection Agency exceeded its authority last year in revoking water pollution permits for what could now become West Virginia’s largest mountaintop removal coal mine, a federal judge in Washington, D.C., ruled Friday.

In siding with St. Louis-based Arch Coal, U.S. District Judge Amy Berman Jackson declared the permits were valid. The U.S. Army Corps of Engineers had issued the permits for the 2,300-acre Spruce No. 1 mine in Logan County.

The EPA didn’t immediately comment, but Arch spokeswoman Kim Link said the company was pleased with the decision. So, too, was the West Virginia Coal Association, which applauded the court “for taking EPA to task for overstepping its authority in order to wage a regulatory war on the West Virginia coal industry.”

Vice President Jason Bostic said the EPA “employed magical thinking” to obtain a result the judge declared “illogical and impractical”…

Click for the decision.

Below is a juicy excerpt from the opinion:

First and foremost, EPA’s interpretation fails because it is illogical and impractical. EPA claims that it is not revoking a permit – something it does not have the authority to do – because it is only withdrawing a specification. Yet EPA simultaneously insists that its withdrawal of the specification effectively nullifies the permit. To explain how this would be accomplished in the absence of any statutory provision or even any regulation that details the effect that EPA’s belated action would have on an existing permit, EPA resorts to magical thinking. 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! Not only is this non- revocation revocation logistically complicated, but the possibility that it could happen would leave permittees in the untenable position of being unable to rely upon the sole statutory touchstone for measuring their Clean Water Act compliance: the permit.

It is further unreasonable to sow a lack of certainty into a system that was expressly intended to provide finality. Indeed, this concern prompted a number of amici to take up their pens and submit briefs to the Court. They argued that eliminating finality from the permitting process would have a significant economic impact on the construction industry, the mining industry, and other “aggregate operators,” because lenders and investors would be less willing to extend credit and capital if every construction project involving waterways could be subject to an open-ended risk of cancellation. See Brief of Amicus Curiae The National Stone, Sand and Gravel Association in Supp. of Pl. Mingo Logan Coal Co., Inc. [Dkt. # 51] at 5–13; Brief of Amici Curiae the Chamber of Commerce of the United States et al. in Support of Pl. [Dkt. # 50] at 7–14. EPA brushed these objections away by characterizing them as hyperbole, Tr. at 66, but even if the gloomy prophesies are somewhat overstated, the concerns the amici raise supply additional grounds for a finding EPA’s interpretation to be unreasonable… [Emphasis added]