By Brian Sewell
Dozens of coal industry groups and environmental organizations crowded into a Washington, D.C., courtroom on March 14 for the latest chapter of a long legal battle. A three-judge panel heard arguments on the legality of the U.S. Environmental Protection Agency’s decision to veto permits for one of the largest mountaintop removal coal mines ever proposed in Appalachia.
The original permits for Mingo County Coal’s Spruce Mine No. 1 were approved by the U.S. Army Corps of Engineers in 2007 after the company addressed EPA concerns by reducing the size of the permit by 835 acres. In 2011, however, the EPA revoked the permits, citing unacceptable damage to water quality. The agency said permitted valley fills at the mine would bury more than six miles of streams with millions of tons of mining waste, eliminating all fish, small invertebrates, salamanders and other wildlife.
The action received swift condemnation from Appalachian politicians and was challenged immediately by the National Mining Association. On March 23, 2012, the veto was overturned in a D.C. District Court. In her decision, Judge Amy Berman Jackson wrote that the EPA’s attempt to veto permits after they had been issued is “unprecedented in the history of the Clean Water Act.” The EPA is back in court appealing the decision to overturn its veto.
Lawyers representing Mingo County Coal, a subsidiary of St. Louis-based Arch Coal, argue that if the EPA’s veto stands, it will “create uncertainty, hinder investments and stifle economic growth in the region.” The EPA maintains that such concerns are unfounded because it has only retroactively rescinded two other permits in the 40 years since the Clean Water Act created the permitting process.
Arguments made on the EPA’s behalf by the Justice Department maintain that the agency’s role is not to duplicate the Corps’ responsibilities, but “to exercise independent judgment, based on the record, when deciding under Section 404 of the Clean Water Act whether adverse effects to waters of the United States will occur and whether or not these effects are acceptable.”
The court’s decision could have implications for the approval of valley fill permits at surface mines by deciding just how much environmental damage is “unacceptable” when it comes to mountaintop removal.