Court Rulings Favor Clean Water

By Brian Sewell

Two consecutive court rulings in April affirmed the U.S. Environmental Protection Agency’s authority to veto mountaintop removal valley fill permits and called for increased scrutiny of the practice’s environmental impacts during the permitting process.

On April 22, the 6th U.S. Court of Appeals revoked the U.S. Army Corps of Engineers’ use of Nationwide Permit 21, invalidating the streamlined permitting process that has contributed to the expansion of mountaintop removal coal mining in Appalachia since 1992. In its ruling, the three-judge panel called the Corps’ actions “arbitrary and capricious” and found that it did not follow Clean Water Act and National Environmental Policy Act regulations. According to the Corps, approximately 70 permits granted under NWP 21 qualify for a five-year extension before becoming unlawful.

The day after the NWP 21 decision, the U.S. Court of Appeals for the District of Columbia ruled in favor of the EPA’s veto of multiple valley fill permits at Arch Coal’s Spruce Mine in Logan County, W.Va., one of the largest mountaintop removal mines in history.

In the ruling, Judge Karen Henderson concluded that the section of Clean Water Act under question clearly followed Congress’s “intent to confer on EPA a broad veto power” that extends beyond simply reviewing permits. Environmental groups called the ruling a major victory over the coal industry’s attempts to prevent the EPA from protecting Appalachian communities from the harm caused by mountaintop removal.

Legislation has been introduced in both the U.S. House and Senate to restrict the EPA’s veto authority and overturn past vetoes by the agency, including that of the Spruce Mine permits.